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ISCR Case 08-08908.a1 — CASE

ISCR Case 08-08908.a1denied

Case Headnote

ISCR Case No. 08-08908.a1

Nov 2, 2009· Hon. Jeffrey D. Billett· appeal

Summary

The applicant, representing himself, was denied a security clearance under Guideline F, Financial Considerations, due to unresolved financial issues spanning six years. The judge found that the applicant's evidence was insufficient to mitigate the concerns raised by his financial history.

Specifically, the judge concluded that the applicant had not acted prudently in monitoring and resolving his financial difficulties over the six-year period. While the applicant presented evidence of past financial problems and efforts to address them, these efforts were not deemed sufficient to overcome the disqualifying conditions.

Consequently, the security clearance was denied, and this unfavorable decision was subsequently upheld on appeal.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21(a)appliedMitigating Condition 2The judge noted the applicant's motorcycle accident and resulting unemployment were beyond his control, but found insufficient evidence of prudent financial management.

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 issuedFeb 19, 2009
Answer filed—
Hearing heldAug 19, 2009
Decision dateNov 2, 2009

Cite For

Insufficient Evidence to Mitigate Financial Issues Under Guideline F
Consideration of Mitigating Conditions in Financial Cases
The Standard for Granting Security Clearance Related to National Security Interests

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's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding that the evidence did not sufficiently mitigate the security concerns raised.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMichael H. Leonard — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board affirmed the Judge's decision because the evidence presented by the Applicant was insufficient to mitigate the security concerns under Guideline F, and the Judge's conclusions were supported by the record.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo 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: Applicant’s evidence was not enough to mitigate the Guideline F security concerns in his case. Applicant submitted new matters, which the Board cannot consider. Adverse decision affirmed. CASENO: 08-08908.a1 DATE: 11/02/2009 DATE: November 2, 2009 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-08908

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 19, 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 Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On August 19, 2009, after the hearing, Administrative Judge Michael H. Leonard denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, “[T]he conditions that resulted in the financial problem were largely beyond the person’s control (e.g., loss of employment, a business downturn, unexpected medical emergency, or a death, divorce or separation), and the individual acted responsibly under the circumstances.” capricious, or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable decision. Applicant’s appeal brief contains a discussion of his past financial problems, the difficulties he has encountered in dealing with them, the efforts he has made in attempting to resolve his financial delinquencies, and his career accomplishments. Some of the matters discussed by Applicant are reiterations of evidence presented and argued at the hearing. Other matters discussed by Applicant and documents submitted with the appeal brief are not included in the record below. The Board cannot consider new evidence on appeal. Directive, ¶ E3.1.29. The Board construes Applicant’s appeal as raising the issue of whether the Judge should have concluded that Applicant’s financial problems are mitigated. 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). In this case, the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. He discussed the applicability of Guideline F, Mitigating Condition 2 at some length, noting Applicant’s motorcycle accident and resulting unemployment were beyond his control. However, the Judge concluded that there was insufficient evidence to conclude that Applicant acted prudently in monitoring and resolving his financial difficulties in the six years since the accident. This conclusion is reasonably supported by the record as are the Judge’s conclusions about the applicability of the other mitigating conditions and his whole person analysis. The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for his 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). Therefore, the Judge’s ultimate unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance 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