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ISCR Case 08-06571.a1 — CASE

ISCR Case 08-06571.a1denied

Case Headnote

ISCR Case No. 08-06571.a1

Apr 24, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

This security clearance application was denied under Guidelines E (Personal Conduct) and F (Financial Considerations). The applicant, representing himself, faced concerns primarily stemming from a significant history of unmet financial obligations.

The administrative judge found that the applicant had a serious pattern of not meeting financial responsibilities and that his claims of mitigating circumstances were insufficient. Specifically, the judge noted that the applicant still had significant outstanding debts at the time of the decision.

The appeal board affirmed the denial, concurring with the judge's assessment that the applicant failed to provide adequate evidence to support his claims of mitigation. Disqualifying conditions AG ¶ 20 and AG ¶ 15 were raised, while mitigating conditions AG ¶ 21 and AG ¶ 17 were considered but ultimately deemed insufficient to overcome the established financial concerns.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe judge found the mitigating evidence insufficient to overcome the government's security concerns.
AG ¶ 17notedPersonal Conduct

Key Rule Quoted

“Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.”

Procedural Posture

SOR issuedDec 2, 2008
Answer filed—
Hearing held—Decided on the written record.
Decision dateApr 24, 2009

Cite For

Insufficient Mitigating Evidence Under Guideline F
Serious History of Unmet Financial Obligations
Burden of Proof Shifts to Applicant to Establish Mitigation After Government Raises Security Concerns.

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 filed by an applicant seeking to overturn an adverse security clearance decision based on financial considerations under Guideline F. The applicant argued that the Judge erred in findings related to his financial situation and mitigating evidence. The Board affirmed the Judge's decision, finding no harmful error and that the Judge's conclusions were supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowArthur E. Marshall, Jr. — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge's adverse decision should be reversed because the Judge did not give sufficient weight to Applicant's mitigating evidence.

Why the Board ruled this way

The Board concluded that the Judge's material findings are based on substantial evidence and that Applicant has not identified any harmful error likely to change the outcome of the case. The Judge reasonably weighed the evidence and articulated a satisfactory explanation for the decision.

Standard of review applied

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

Appeal Board panel

Michael Y. Ra’anan — Chair
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: The Judge’s challenged findings are supported by substantial record evidence.. Applicant has not identified any harmful error. Adverse decision affirmed. CASENO: 08-06571.a1 DATE: 04/24/2009 DATE: April24, 2009 In Re: ---- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-06571

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 December 2, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) Applicant argues that the Judge erred in finding he had no children, and that there was no tangible evidence that several of the debts belonged to Applicant’s father and that Applicant had received credit counseling. Although Applicant stated these facts in his response to the government’s file of relevant material (FORM), he provided only one piece of independent evidence to corroborate his assertions. The evidence he provided is insufficient to prove the point he sought to demonstrate. (Neither Applicant’s father nor his child is listed on his security clearance application.) Applicant elected to have his case decided on the written record. As a result, the Judge did not have an opportunity to question Applicant and evaluate his credibility in the context of a hearing. and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested that the case be decided on the written record. On March 12, 2009, after considering the record, Administrative Judge Arthur E. Marshall, Jr. 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 under Guideline F is arbitrary, capricious or contrary to law. 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 asserts that this evidence shows that his inability to satisfy his outstanding debts was due to a period of unemployment and medical problems. He also contends that the Judge erred with respect to several of his findings of fact. For the reasons that follow, the Board affirms the Judge’s decision. (1) The Board’s review of a Judge’s findings is limited to determining if they are supported by substantial evidence—such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record. Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620, (1966). After reviewing the record, the Board concludes that the Judge’s material findings are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. Applicant has not identified any harmful error likely to change the outcome of the case. Considering the record evidence as a whole, the Judge’s material findings of security concern are sustainable. See, e.g., ISCR Case No. 06-21025 at 2 (App. Bd. Oct. 9, 2007). (2) 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 serious 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 seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. The Judge found in favor of Applicant as to several of the SOR allegations, but 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, 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)). Therefore, the Judge’s ultimate unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, 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