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ISCR 08-07528: Guideline F security clearance appeal, denied (2009) · CASE

ISCR Case 08-07528denied

Case headnote

ISCR Case No. 08-07528

Dec 29, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A senior technical writer for a defense contractor, holding an advanced degree, was denied a security clearance primarily under Guideline F, Financial Considerations. The denial stemmed from numerous delinquent debts, some of which had resulted in judgments, and a history of unemployment that exacerbated her financial difficulties. Disqualifying conditions F.2 and F.3 were raised, indicating a pattern of financial irresponsibility and an inability to meet financial obligations.

While mitigating conditions F.1 and F.2 were considered, the judge found insufficient evidence to support their application. The applicant's claims regarding her financial situation were noted to be inconsistent, further undermining her case.

Ultimately, the judge denied the clearance, a decision subsequently affirmed by the appeal board. The board concluded there was a lack of substantial evidence to support the applicant's claims of mitigation, leading to the final denial of her security clearance.

Conditions referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts
F.2raisedDelinquent Debts

Mitigating

F.1rejectedThe Behavior Was Not RecentThe judge found that the applicant's financial problems had persisted for many years.
F.2rejectedThe Individual Has Received Counseling for the ProblemThe applicant's claims of working with a financial counselor were not corroborated by sufficient evidence.

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 issuedMar 12, 2009
Answer filed—
Hearing heldSep 18, 2009Applicant requested a decision on the written record.
Decision dateDec 29, 2009

Cite for

Insufficient Evidence for Financial Mitigation Under Guideline F
Impact of Long-term Financial Issues on Security Clearance Eligibility
Credibility Issues Arising From Inconsistent Statements Regarding Financial Counseling

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 a denial of a security clearance based on financial considerations. The applicant raised issues regarding the Judge's findings and the decision's legality. The Board affirmed the decision, finding no harmful error in the Judge's conclusions.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJuan J. Rivera denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantError found, but harmless
Applicant contended that certain of the Judge’s findings of fact are not supported by substantial record evidence.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argued that the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found no harmful error in the Judge's findings and concluded that the Judge's decision was supported by substantial 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 appeal

Appeal Board panel

Michael Y. Ra’anan (Chair)
William S. Fields
James E. Moody

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

APPEARANCES

DATE: December 29, 2009 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-07528

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 March 12, 2009, 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 written record. On September 18, 2009, after considering the record, Administrative Judge Juan J. Rivera denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether certain of the Judge’s findings of fact are supported by substantial record evidence and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge found that Applicant is a senior technical writer for a defense contractor. She holds an advanced degree from a well-known U.S. university. She has been married three times, each ending in divorce. Applicant experienced periods of unemployment prior to her present job. Applicant has numerous delinquent debts, arising from consumer purchases, credit cards, etc. Some of the debts had been reduced to judgements in favor of the creditors. Most of the debts had been delinquent for many years. Applicant experienced a financial downturn in 2000, due to the decline in the information technology industry. She has enlisted the services of two attorneys to assist her in resolving her financial problems. “She claimed she had been working with a financial counselor to pay her delinquent debts. It is not clear whether she is talking about her attorneys or another financial counselor.” Decision at 4. The Judge acknowledged that Applicant’s financial problems were affected by her prior unemployment. However, he concluded that she had failed to meet her burden of persuasion as to mitigation. He noted a paucity of record evidence in corroboration of her claims to have paid off certain debts. He also noted an apparent inconsistency in Applicant’s explanations for the circumstances underlying one of the debts in the SOR, which is pertinent in an evaluation of her credibility. “The sparse record evidence fails to convince me of Applicant’s suitability for a security clearance.” Id. at 9. Applicant contends that certain of the Judge’s findings are not supported by substantial record evidence. For example, she stated that she had only been divorced twice, her first marriage having ended with an annulment. She also denied having stated that she had a financial counselor other than her two attorneys. To the extent that the challenged findings are error, they are harmless, in that they are not likely to have affected the outcome of the decision. See ISCR 01-23362 (App. Bd. Jun. 5, 2006); ISCR Case No. 03-09915 (App. Bd. Dec. 16, 2004); ISCR Case No. 01-11192 (App. Bd. Aug. 26, 2002), for discussion of harmless error. Applicant’s brief 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). Though acknowledging that the Board cannot consider new evidence, she states that she would be able to produce such evidence if permitted. The Directive does not permit the Board to grant this requested relief. See Directive ¶ E3.1.29. (“No new evidence shall be received or considered by the Appeal Board”). See also ISCR Case No. 08-06875 at 2 (App. Bd. Oct. 29, 2009); ISCR Case No. 08-06518 at 2 (App. Bd. Mar. 3, 2009); ADP Case No. 08-03721 at 2 (App. Bd. Oct. 28, 2009). Applicant states that a loss of her security clearance will have an adverse impact on her employment. However, the effect that an unfavorable decision may have on an applicant is not a relevant or material consideration in evaluating his or her security eligibility. See ISCR Case No. 03-21012 at 4 (App. Bd. Aug. 31, 2005); ISCR Case No. 03-19002 at 4 (App. Bd. May 5, 2005). 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 Judge’s decision that “it is not clearly consistent with the national interest to grant or continue eligibility for a security clearance for Applicant” is sustainable on this record. Decision at 9. “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).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board