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ISCR Case 08-07753.a1 — CASE

ISCR Case 08-07753.a1denied

Case Headnote

ISCR Case No. 08-07753.a1

Feb 25, 2011· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance primarily under Guideline F (Financial Considerations), with Guideline E (Personal Conduct) also raised. The denial was based on a lengthy history of unmet financial obligations and significant outstanding debts that remained at the time of the decision.

Specifically, Disqualifying Condition F.1 was cited, indicating a pattern of financial irresponsibility. While Mitigating Conditions F.2 and F.3 were considered, they were not sufficient to overcome the concerns. The judge concluded that the applicant had not established a track record of financial responsibility.

Ultimately, the applicant's inability to demonstrate consistent financial accountability and the presence of substantial unresolved debts led to the denial of the security clearance.

Conditions Referenced

Disqualifying

F.1raisedInability to Satisfy Debts

Mitigating

F.2rejectedThe Conditions That Led to the Financial Problems Were TemporaryThe judge found the applicant's financial problems were ongoing and not sufficiently mitigated.
F.3rejectedThe Applicant Has Made Good Faith Efforts to Repay DebtsThe judge concluded that the applicant's efforts were insufficient to overcome the disqualifying conduct.

Key Rule Quoted

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

Procedural Posture

SOR issuedSep 11, 2009
Answer filed—
Hearing heldNov 24, 2010
Decision dateFeb 25, 2011

Cite For

Denial Based on Ongoing Financial Issues Under Guideline F
Burden of Proof Shifts to Applicant to Establish Mitigation After Government Raises Security Concerns
Judge's Discretion in Weighing Evidence and Making Credibility 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 personal conduct. The applicant argued that the Judge mis-weighed the evidence and did not consider mitigating factors adequately. The Board affirmed the Judge's decision, finding no harmful error in the ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowLeRoy F. Foreman — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge’s adverse decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge reasonably considered all evidence, including mitigating factors, and concluded that the applicant did not demonstrate that the Judge's decision was arbitrary or capricious.

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 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; Guideline E DIGEST: Applicant’s appeal brief does not rebut the presumption that the Judge fairly considered all the evidence. Adverse decision affirmed CASENO: 08-07753.a1 DATE: 02/25/2011 DATE: February 25, 2011 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-07753

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 September 11, 2009, 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 E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 24, 2010, after the hearing, Administrative Judge LeRoy F. Foreman 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 contends that the Judge’s adverse decision should be reversed because the Judge mis-weighed the evidence. Specifically, he argues that the Judge’s decision focused almost exclusively on the government’s adverse evidence and did not give enough consideration to the mitigating evidence presented by Applicant. As a result, Applicant believes that he did not receive a fair decision under the whole-person concept. Applicant has not demonstrated that the Judge’s ultimate adverse decision is arbitrary, capricious, or contrary to law. A review of the decision indicates that the Judge reasonably considered evidence favorable to the Applicant including such things as: his explanations as to the circumstances alleged in the SOR; his educational and employment accomplishments; his favorable performance reviews and pay raises; his honorable service in the U.S. Army; his reputation for having a positive attitude, for being cooperative, for being responsive to customers, and for being an effective manager; his recent engagement of a debt resolution company and his settlement or partial payment of several outstanding debts; and the fact that he has held a clearance since 1987. Decision at 2-4, 9. A Judge is presumed to have considered all the evidence in the record. See, e.g., ISCR Case No. 08-06559 at 3 (App. Bd. Dec. 2, 2010). There is nothing in the Applicant’s presentation on appeal or in the decision to rebut the presumption that the Judge fairly considered all of the evidence including evidence favorable to the Applicant.

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). As to Guideline F, 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 Applicant “ha[d] not yet established a track record of financial responsibility” and that his financial 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, and considered the possible application of relevant conditions. 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. After reviewing the record, the Board concludes that as to the Guideline F allegations 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). The Judge’s unfavorable security clearance decision under Guideline F is sustainable. Accordingly, the Board need not reach the issues raised by Applicant as to Guideline E. See, e.g., ISCR Case No. 06-20062 at 3 (App. Bd. Jul. 15, 2008).

ORDER

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