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ISCR Case 08-08012.a1 — CASE

ISCR Case 08-08012.a1denied

Case Headnote

ISCR Case No. 08-08012.a1

Nov 20, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, represented by counsel, was denied under Guideline F (Financial Considerations) due to significant delinquent debts totaling approximately $262,592. These debts primarily stemmed from real estate transactions and had been delinquent for a substantial period.

The applicant's financial difficulties were exacerbated by personal circumstances, including a separation from his wife. Despite these factors, the applicant failed to demonstrate sufficient financial responsibility or adequate mitigation of the outstanding debts.

The Board affirmed the denial, concluding that granting a security clearance was not consistent with national security interests given the applicant's financial situation and the presence of Disqualifying Condition AG ¶ 19.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

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 issuedApr 9, 2009
Answer filed—
Hearing heldAug 31, 2009
Decision dateNov 20, 2009

Cite For

Affirmation of Adverse Security Clearance Decisions Based on Significant Financial Issues Under Guideline F
Importance of Demonstrating Financial Responsibility for Security Clearance Eligibility
Limitations on the Board's Authority to Waive Provisions of the Directive.

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 the applicant after the Administrative Judge denied his request for a security clearance based on financial considerations. The applicant argued that the Judge erred in applying mitigating conditions and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMark Harvey — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge erred in his application of the mitigating conditions.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge's adverse security clearance decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's application of the law or in the findings of fact, affirming that the decision was consistent with the national interest.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo 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

SYNOPSIS

KEYWORD: Guideline F DIGEST: The Board does not have authority to waive provisions of the Directive. Adverse decision affirmed. CASENO: 08-08012.a1 DATE: 11/20/2009 DATE: November 20, 2009 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-08012

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Alan V. Edmunds, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On April 9, 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 hearing. On August 31, 2009, after the hearing, Administrative Judge Mark Harvey 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 the Judge erred in his application of the mitigating conditions 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 had significant delinquent debt, arising in large measure from real estate transactions. Applicant had purchased a number of properties at tax sales, in 2001 owning fifteen. However, he experienced financial problems associated with the properties, arising, inter alia, from poorly performed repairs and from Applicant’s separation from his wife. He attempted to sell some of them, but he was unable to find buyers who would pay the prices he desired. Although the Judge resolved some of the allegations in Applicant’s favor, he concluded that Applicant had failed to meet his burden of persuasion as to six mortgage debts, totaling around $262, 592. He noted that these debts had been delinquent “for a substantial period of time.” Furthermore, Applicant “has not paid anything to these six creditors in the past several years.” Decision at 13. The Judge concluded that Applicant’s financial situation reflected poorly upon his judgement. In support of his appeal, Applicant points to decisions by the Hearing Office which he argues support his request for a favorable determination. The Board gives due consideration to these cases. However, each case “must be decided upon its own merits.” Directive ¶ E2.2.3. Moreover, Hearing Office decisions are binding neither on other Hearing Office Judges nor on the Board. See ISCR Case No. 06-24121 at 2 (App. Bd. Feb. 5, 2008). Applicant requests that the Board waive the one- year bar on reapplication mandated by Directive ¶ E3.1.37. The Board does not have authority to waive provisions of the Directive. Compare ISCR Case No. 04-01961 at 2-3 (App. Bd. Jul. 12, 2007); ADP Case No. 07-06039 at 3 (App. Bd. Jul. 8, 2008). 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 Applicant eligibility for a security clearance” is sustainable on this record. Decision at 14. “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