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ISCR Case 08-08154.a1 — CASE

ISCR Case 08-08154.a1denied

Case Headnote

ISCR Case No. 08-08154.a1

Dec 15, 2009· Hon. Jeffrey D. Billett· appeal

Summary

The applicant, an imagery intelligence analyst, was denied a security clearance under Guideline F, Financial Considerations, due to unresolved financial issues. Disqualifying conditions were raised under Adjudicative Guideline (AG) ¶ 19, citing numerous delinquent debts, including a significant automobile debt.

While the applicant made some financial progress and consulted with a financial counselor, mitigating conditions under AG ¶ 20(a), (b), (c), and (d) were applied but ultimately deemed insufficient. The applicant failed to demonstrate a consistent track record of actual debt repayment.

Consequently, the Adjudicator concluded that granting a security clearance was not consistent with national security interests, leading to the denial of the application.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20(a)rejectedThe Behavior Was Not RecentThe applicant's financial problems were due to causes outside his control, but he did not show a sufficient track record of repayment.
AG ¶ 20(b)rejectedThe Conditions That Resulted in the Behavior Were TemporaryWhile the applicant's financial issues were influenced by unemployment and medical problems, he did not mitigate the security concerns.
AG ¶ 20(c)appliedThe Applicant Has Received or Is Receiving Counseling for the ProblemThe applicant consulted a financial counselor and devised a budget.
AG ¶ 20(d)rejectedThe Applicant Has Made a Good Faith Effort to Repay Overdue Creditors or Otherwise Resolve DebtsThe applicant's financial plan depended on contingent future income and did not demonstrate actual repayment.

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 30, 2009
Answer filed—
Hearing heldSep 30, 2009
Decision dateDec 15, 2009

Cite For

Denial of Security Clearance Due to Unresolved Financial Issues Under Guideline F
Importance of Demonstrating a Track Record of Debt Repayment
Consideration of Financial Counseling as a Mitigating Factor but Not Sufficient Alone for Clearance Approval

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 under Guideline F. The Applicant argued that the Judge made errors in findings of fact regarding his financial situation. The Board found that while there were errors, they were harmless and affirmed the Judge's decision to deny the clearance.

Appealed bythe applicant

Applicant representationPro se (self-represented)

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

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantError found, but harmless
The Judge erred in finding that Applicant's diminished income in 2000 caused him to lose a house.
Judge mis-weighed or ignored evidence — raised by the applicantError found, but harmless
The Judge's statement regarding Applicant's current job being more lucrative did not account for the loss of his wife's income.

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 that the Judge's errors were harmless and did not affect the outcome of the case. The Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for the denial of the security clearance.

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

Jeffrey D. Billett
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: Although Applicant demonstrated that the Judge made an error in his findings of fact, the error is harmless. Applicant failed to mitigate the security concerns arising from his delinquent debts. Adverse decision affirmed. CASENO: 08-08154.a1 DATE: 12/15/2009 DATE: December 15, 2009 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-08154

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 April 30, 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 September 30, 2009, after the hearing, Administrative Judge Arthur E. Marshall, Jr., 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 were based upon substantial record evidence; whether the Judge erred in his application of the See discussion below. pertinent mitigating factors; and whether the Judge’s whole-person analysis was erroneous. Finding no harmful error, we affirm. The Judge made the following findings of fact: Applicant is an imagery intelligence analyst employed by a federal contractor. He is married and has four adult children, one of whom lives with Applicant while attending college. Applicant has four grandchildren. One of the grandchildren has a father who provides some support. Applicant contributes to his grandchildren’s households. Applicant has numerous delinquent debts, including one for over $24,000 for an automobile. The Judge found that Applicant and his wife have experienced periods of unemployment and have suffered from medical problems, all of which have contributed to Applicant’s financial condition. Applicant was discharged in Chapter 7 bankruptcy in 1997, which resulted from his being held liable for $20,000 in a dispute over a real estate transaction. Applicant lost a second house in 2000, due to diminished income when his work hours were reduced. He lost a government job in 2004, when he failed to qualify for a security clearance. He was laid off from another job in 2007, when the contract he was working on was terminated. In addition to the automobile debt, Applicant and his wife have approximately $4,850 in undisputed debt which they have not yet addressed. Applicant has become more involved in the family’s finances recently, and he and his wife have consulted a financial counselor. They have devised a budget, which includes funds for payments on the automobile debt. “Their current budget reflects that Applicant’s current position provides him with a higher compensation package than he received in prior years . . . The majority of progress made by Applicant and his wife toward their delinquent debts and credit report was made possible by Applicant’s acquisition of his current position and recent financial guidance. The Judge acknowledged that Applicant’s financial problems were due in large measure to causes outside his control. However, the Judge stated that Applicant had not demonstrated a track record of actual debt repayment. See ISCR Case No. 07-13041 at 4 (App. Bd. Sep. 19, 2008); ISCR Case No. 99-0012 at 3 (App. Bd. Dec. 1, 1999). He noted, for example, that Applicant’s financial plan is at least partially dependent on contingent future income such as overtime pay and a possible tax refund, which may not materialize. The Judge concluded that Applicant had not met his burden of persuasion as to mitigation. Applicant contends that the Judge erred in some of his findings. For example, Applicant challenges the Judge’s finding that Applicant’s diminished income in 2000 caused him to lose a house. Applicant states that it was his wife, not he, who experienced that problem. The record evidence demonstrates that Applicant’s contention is correct. See Applicant Exhibit E, Time-line of Events, at 1. The Judge’s finding is in error. However, as Applicant himself acknowledges in his brief, this error did not likely affect the outcome of the case. Therefore, it is harmless. 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). Applicant also challenges the Judge’s statement that his current job is more lucrative than his previous ones have been. Applicant contends that the Judge’s statement does not take into account the fact that his wife no longer works, with the result that his overall disposable income is less than he believes the Judge understood it to be. The Board has examined this finding. It was based on an exhibit provided by Applicant, the household budget. Viewed in that light and in the context of Applicant’s presentation of his many financial setbacks, the Judge’s finding is not an unreasonable interpretation of Applicant’s current financial situation. However, even if the Judge erred, we conclude that the error is also harmless. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, both as to the mitigating conditions and the whole-person factors. The decision draws “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 national security to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 12. “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: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, 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