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ISCR 08-05069.a1: Guideline F security clearance appeal, denied (2009) · CASE

ISCR Case 08-05069.a1denied

Case headnote

ISCR Case No. 08-05069.a1

Feb 20, 2009· Hon. Jean E. Smallin· appeal

Summary

This security clearance application was denied, primarily under Guideline F (Financial Considerations), with favorable findings under Guideline J (Criminal Conduct). The applicant, representing himself, faced disqualifying conditions related to unresolved financial difficulties, specifically AG ¶ 20.

Despite presenting some mitigating evidence, referenced as AG ¶ 21, the Board affirmed the Judge's decision to deny the clearance. The Judge determined that the mitigating evidence was insufficient to alleviate the government's security concerns. Most of the applicant's debts remained unpaid or unaddressed, indicating persistent financial issues.

Additionally, the applicant's request to postpone the security clearance process was denied, as the Board lacks the authority to grant such requests. The Board emphasized that the mere presence of mitigating evidence does not automatically lead to a favorable outcome, ultimately upholding the denial of the security clearance.

Conditions referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe Judge found the mitigating evidence insufficient to outweigh the disqualifying financial issues.

Key rule quoted

“The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance determination.”

Procedural posture

SOR issuedJul 24, 2008
Answer filed—
Hearing heldDec 15, 2008
Decision dateFeb 20, 2009

Cite for

Insufficient Mitigating Evidence Regarding Financial Difficulties Under Guideline F
Authority of the Board to Deny Requests for Postponement of Security Clearance Processes
Weighing of Evidence in Security Clearance Determinations

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 involved an applicant seeking a security clearance who was denied based on financial considerations and criminal conduct. The applicant argued that the Judge's decision was arbitrary and requested a postponement of the decision until financial issues were resolved. 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 belowArthur E. Marshall, Jr. denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline FGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant contends that the Judge's adverse decision under Guideline F is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's decision, affirming that the Judge reasonably weighed the evidence and articulated a satisfactory explanation for the unfavorable decision under Guideline F.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference 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; Guideline J DIGEST: The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance determination. The Board has no authority to grant Applicant’s request to postpone his security clearance process until he has resolved his financial difficulties. CASENO: 08-05069.a1 DATE: 02/20/2009 DATE: February 20, 2009 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-05069

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Judge found in Applicant’s favor as to Guideline J. The Judge’s findings and conclusions under Guideline J are not in issue. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On July 24, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992), as amended (Directive). Applicant requested a hearing. On December 15, 2008, after the hearing, Administrative Judge Arthur E. Marshall, Jr. denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s adverse security clearance decision under Guideline F is arbitrary, capricious, or contrary to law. Specifically, Applicant restates the reasons for his financial situation and his efforts to improve it. Applicant contends that the Judge should have found that his financial situation was mitigated. In the alternative, Applicant requests that a decision on his security request be postponed until he is able to improve his financial situation to allow a favorable security clearance decision. Finding no error, we affirm the Judge’s decision. The Judge made the following relevant findings of fact under Guideline F: In 2002, Applicant’s estranged wife charged about $15,000 on Applicant’s credit card without Applicant’s knowledge. Applicant quit his job for personal reasons in the spring of 2005 and was without full- time employment until the middle of 2006. In the meantime, Applicant undertook a series of “side jobs” to cover daily expenses and child support, but did not have the means to pay older debts. More obligations became delinquent. Applicant filed for bankruptcy in 2006, but withdrew the petition on the advice of his mother and friends. Applicant began a six-month job in mid-2006. Applicant accepted a government position in February 2007, although difficulty in obtaining a security clearance caused a change in his position. Applicant continued to work for the government until January 2008. At that time, Applicant resigned his government job to accept a position in a private company after he was erroneously assured that he had been granted a security clearance. Applicant was still unemployed at the time of the hearing, but had job offers pending the outcome of the security clearance process. Applicant has paid off one of the debts listed in the SOR in the amount of $660. He does not believe one of the debts is his, but has not demonstrated that he disputed that debt to the appropriate authorities. Except for the $660 debt, Applicant’s debts remain substantially unpaid or unaddressed. Applicant indicates that he has contacted a debt consolidation firm. They will act on his behalf to file for bankruptcy for him after he pays their service fee of $1,551. Applicant contends that the Judge’s adverse decision should be reversed because the Judge did not give sufficient weight to Applicant’s mitigating evidence. Applicant has not demonstrated that the Judge’s decision is arbitrary, capricious, or contrary to law. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security determination. 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). An applicant’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 that 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. 06-23384 at 3 (App. Bd. Nov. 23, 2007). In this case, the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. He reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007). After reviewing the record as a whole, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for his 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)). Accordingly, the Judge’s ultimate unfavorable security clearance decision under Guideline F is sustainable. With regard to Applicant’s alternative request that the security clearance process be postponed until his financial situation has improved, the Board has no authority to grant such an action.

ORDER

The Judge’s unfavorable security clearance decision 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