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ISCR Case 08-04889.a1 — CASE

ISCR Case 08-04889.a1denied

Case Headnote

ISCR Case No. 08-04889.a1

Apr 23, 2009· Hon. Jean E. Smallin· appeal

Summary

This security clearance application was denied under Guideline F, Financial Considerations, due to the applicant's ongoing and unresolved financial issues. The applicant, representing himself, presented a history of not meeting financial obligations.

At the time of the decision, the applicant still carried significant outstanding debts. The judge determined that these financial problems were ongoing and had not been sufficiently mitigated.

Consequently, the application was denied, as the disqualifying conditions under Guideline F, specifically AG ¶ 19, were found to outweigh any potential mitigating conditions under AG ¶ 20.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20rejectedFinancial ConsiderationsThe judge found the mitigating evidence insufficient to overcome the government's security concerns.

Key Rule Quoted

“The general standard is that a clearance may be granted only when 'clearly consistent with the interests of the national security.'”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedOct 3, 2008
Answer filed—
Hearing heldFeb 19, 2009
Decision dateApr 23, 2009

Cite For

Ongoing Financial Issues Under Guideline F
Insufficient Mitigation of Financial Problems
Standard for Granting Security Clearance Consistent with National Security Interests

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Affirmed

The appeal was regarding the denial of a security clearance based on financial considerations under Guideline F. The Applicant argued that the Judge's decision was arbitrary and that earlier financial issues were unrelated to current problems. The Board affirmed the Judge's decision, finding no harmful error in the assessment of the Applicant's financial situation.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowShari Dam — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge reasonably concluded that the Applicant's financial problems were ongoing and that the Judge articulated a satisfactory explanation for the decision, demonstrating a rational connection between the facts and the choice made.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Michael D. Hipple
Jean E. Smallin
William S. Fields

Descriptive structured reading of this decided, public Appeal Board decision — what the case says, not a prediction or advice.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

KEYWORD: Guideline F DIGEST: Applicant still has significant outstanding debt and is still trying to resolve his financial problems. The Judge could reasonably conclude his problems were ongoing. Adverse decision affirmed. CASENO: 08-04889.a1 DATE: 04/23/2009 DATE: April 23, 2009 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-04889

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On October 3, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 19, 2009, after the hearing, Administrative Judge Shari Dam denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse clearance decision is arbitrary, capricious, or contrary to law. Applicant argues that the Judge’s adverse decision should be reversed because the Judge considered the totality of his financial problems dating from the late 1990sin reaching her decision. It is Applicant’s contention that his earlier financial problems were unrelated to his current financial problems. In the alternative, Applicant asks that he be granted a clearance so that he can have time to work out a plan to pay off his outstanding debts. Applicant has not demonstrated that the Judge’s decision is arbitrary, capricious, or contrary to law. Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. See, e.g., ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007). A party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). In this case, the Judge found that Applicant had a lengthy history of not meeting financial obligations. At the time the case was submitted for decision, Applicant still had significant outstanding debts, and was still trying to resolve his financial problems. In light of the foregoing, the Judge could reasonably conclude that those problems were still ongoing. See, e.g., ISCR Case No. 05-07747 at 2 (App. Bd. Jul. 3, 2007). The Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct, considered the possible application of relevant conditions and factors, and reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. Nor does it have authority to grant a clearance on a conditional or probationary basis. See, e.g., ISCR Case No. 08-03258 at 2 (App. Bd. Mar. 9, 2009). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). Therefore, the Judge’s unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board