CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 08-07043.a1 — CASE

ISCR Case 08-07043.a1denied

Case Headnote

ISCR Case No. 08-07043.a1

Jul 21, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied clearance under Guideline F (Financial Considerations) due to approximately $120,000 in delinquent debt. The judge identified disqualifying conditions as outlined in AG ¶ 20.

While some circumstances contributing to the debt were acknowledged as beyond the applicant's control, and mitigating conditions under AG ¶ 21(a) and AG ¶ 21(c) were considered, they were deemed insufficient. The judge determined that the seriousness of the disqualifying financial conduct outweighed the presented mitigating evidence.

Consequently, the security concerns related to the substantial delinquent debt were not adequately resolved, leading to the denial of the applicant's security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21(a)rejectedThe Behavior Was Not Recent.The judge acknowledged some circumstances were beyond the applicant's control but found this did not mitigate the security concerns.
AG ¶ 21(c)rejectedThe Applicant Has Received Counseling for the Financial Issues.The judge concluded that the evidence in mitigation was insufficient to overcome the government's case.

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 17, 2008
Answer filed—Applicant represented himself.
Hearing held—Decision based on administrative record.
Decision dateJul 21, 2009

Cite For

Insufficient Mitigation of Financial Issues Under Guideline F
Weighing of Evidence in Security Clearance Decisions
Criteria for Granting Security Clearances 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 brought by the applicant after the Administrative Judge denied his request for a security clearance based on significant delinquent debt. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and properly reasoned.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoan Caton Anthony — denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

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

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the Judge properly weighed the evidence, concluding that the applicant's mitigating circumstances did not sufficiently overcome the government's security concerns due to the substantial amount of delinquent debt.

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 found that Applicant’s current total delinquent debt is approximately $120,000. The Judge acknowledged that some of Applicant’s circumstances were beyond his control in creating the delinquencies, but, ultimately, insufficient mitigation had been established owing to the substantial amount of delinquent debt remaining. The Judge’s conclusion is reasonably supported by the record. Adverse decision affirmed. CASENO: 08-07043.a1 DATE: 07/21/2009 DATE: July 21, 2009 In Re: ------------------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-07043

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 17, 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 decision on the administrative record. On May 6, 2009, after considering the record, Administrative Judge Joan Caton Anthony denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable decision.

The Judge found that Applicant’s current total delinquent debt is approximately $120,000. The Judge also found in Applicant’s favor regarding two of the SOR allegations. The Judge acknowledged that some of Applicant’s circumstances were beyond his control in creating the delinquencies, but she explained why this fact did not overcome the government’s security concerns. A review of the record indicates that the Judge’s factual findings are supported by the evidence.

Applicant argues that his situation should have caused the Judge to apply the Guideline F mitigating conditions in his favor. 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 weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. She concluded that, notwithstanding the partial applicability of two Guideline F Mitigating Conditions, the evidence in mitigation was of insufficient strength to overcome the government’s security concerns. Specifically, the Judge found in Applicant’s favor on two of the debts alleged in the SOR based on Applicant’s explanations. The Judge ultimately concluded, however, that because of the substantial amount of delinquent debt remaining, Applicant had not established sufficient mitigation to satisfy his burden of overcoming the government’s case. This conclusion is reasonably supported by the record. 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 her 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 ultimate unfavorable security clearance decision under Guideline F 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