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ISCR Case 08-08332.a1 — CASE

ISCR Case 08-08332.a1denied

Case Headnote

ISCR Case No. 08-08332.a1

Nov 19, 2010· Hon. Jean E. Smallin· appeal

Summary

The applicant, a former U.S. Marine Corps member and account manager for a defense contractor, was denied a security clearance under Guideline F (Financial Considerations). This denial stemmed from significant financial difficulties, specifically multiple mortgage debts and a foreclosure.

The judge identified disqualifying conditions F.1 and F.2, concluding that these financial issues presented serious security concerns. Although the applicant had secured new employment with a substantial salary, this was not deemed sufficient to mitigate the existing financial concerns.

Ultimately, the judge determined that the applicant's financial history posed an unacceptable security risk, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

F.1raisedInability to Satisfy Debts
F.2raisedDelinquent Debts

Key Rule Quoted

“A party’s disagreement with the Judge’s weighing of the evidence is not sufficient to demonstrate the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law.”
— ISCR Case No. 06-21819 at 2 (App. Bd. Aug. 13, 2009)

Procedural Posture

SOR issuedFeb 26, 2010
Answer filed—
Hearing heldAug 24, 2010
Decision dateNov 19, 2010

Cite For

Financial Considerations Under Guideline F
Weighing of Evidence in Security Clearance Decisions
Impact of Financial Difficulties on Security Clearance Eligibility

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 due to financial considerations under Guideline F. The applicant argued that the Judge failed to properly weigh evidence in his favor and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the weighing of evidence or the conclusions reached.

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 applicantRejected
Applicant contended that the Judge did not extend appropriate weight to evidence he believed favorable to him.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge properly weighed the evidence and articulated a satisfactory explanation for the decision, with a rational connection between the facts found and the choice made.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Jean E. Smallin
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: A party’s disagreement with the Judge’s weighing of th evidence is not sufficient to demonstrate the Judge weighed th evidence in a manner that was arbitrary, capricious, or contrary to law. CASENO: 08-08332.a1 DATE: 11/19/2010 DATE: November 19, 2010 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-08332

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 February 26, 2010, 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 24, 2010, 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 the Judge failed properly to weigh the record evidence and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. Consistent with the following discussion, we affirm the decision of the Judge. The Judge made the following pertinent findings of fact: Applicant is an account manager for a Defense contractor. He has a high school diploma. Applicant and his wife divorced, and he provides financial support for their three children. Applicant served in the U.S. Marine Corps from 1988 to 1992. Later, during the early 2000s, Applicant worked at low-paying jobs. Most of his earnings went to pay his child support obligations. In 2005, Applicant was looking for a job in another state. He bought a house in that state. Within a month of buying it, he found that he did not get the job. He ultimately had a judgment entered against him due to failure to pay his mortgage on the house. He subsequently returned to his previous domicile to look for work. He obtained a job earning him about $36,000 a year. He bought another house, for $417,000. He intended to use it as a home and as an investment. He put no money down on the house, hoping to make his mortgage payments by renting out some of the rooms to boarders. He was unsuccessful in finding work or boarders, and he fell behind in his mortgage payments.1 Neither was he able to refinance the mortgage. The house was subsequently sold in a foreclosure sale. He fell behind in other bills as well. Applicant reconciled with his ex-wife. In mid-2010 he secured a Defense contract, which provides him with a monthly gross salary of $14,750. The delinquent debts which formed the basis of the Judge’s adverse formal findings consist of a debt owed to a bank and three mortgage debts, one of which, as stated above, was reduced to judgment. Appellant contends that the Judge did not extend appropriate weight to evidence he believed favorable to him, such as his history of good job performance, his Marine Corps service, and circumstances underlying his mortgage debts which he believes were beyond his control. However, 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. 06-21819 at 2 (App. Bd. Aug. 13, 2009). In support of his appeal Applicant has presented new evidence concerning his efforts at debt repayment following the close of the record. We cannot consider this new evidence. See Directive ¶ E3.1.29. (“No new evidence shall be received or considered by the Appeal Board”). See also ISCR Case No. 08-05379 at 2 (App. Bd. Sep. 15, 2010). The record supports a conclusion 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 adverse decision is sustainable on this record. “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: Jean E. Smallin Jean E. Smallin 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

FOOTNOTES

1 “Q: How much did you buy it for? A: $417,000 . . . Q: How much were you making at the time? . . . A: About $3000 a month . . . Q: And how much were your mortgage payments on a $417,000 loan? A: The mortgage payment was about – it was close to $3800.” Tr. at 27-28.