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ISCR Case 08-10098.a1 — CASE

ISCR Case 08-10098.a1denied

Case Headnote

ISCR Case No. 08-10098.a1

deniedJan 6, 2012· Hon. Michael Y. Ra'anan· appeal

Summary

A defense contractor employee with a bachelor's degree in business marketing was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from a pattern of financial misconduct, specifically the issuance of multiple bad checks and the failure to disclose significant debts on their trustworthiness application.

The judge determined that the applicant's financial problems were ongoing, demonstrating a lack of responsibility and disregard for legal obligations. These issues aligned with Disqualifying Conditions AG ¶ 20 and AG ¶ 15.

The appeal board affirmed the adverse trustworthiness determination, concluding that the applicant had not mitigated the concerns. The applicant's claims of errors in the judge's findings were deemed insufficient to overturn the decision, leading to the denial of the security clearance.

Why the Applicant Was Denied

The applicant issued multiple bad checks and failed to disclose significant debts on his trustworthiness application.
The judge found that the applicant's financial problems were ongoing and indicative of a lack of responsibility.
The applicant's claims of errors in the judge's findings were insufficient to overturn the decision.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

Key Rule Quoted

“The Judge’s material findings of trustworthiness concern are based on substantial evidence or constitute characterizations or inferences that could be drawn from the record.”

Procedural Posture

SOR issuedOct 15, 2010
Answer filed—
Hearing heldSep 27, 2011
Decision dateJan 6, 2012

Cite For

Affirmation of Adverse Trustworthiness Determinations Based on Financial Misconduct
Substantial Evidence Standard for Trustworthiness Concerns
Disregard for Legal Obligations as a Basis for Denial Under Guideline E and F

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

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 Judge’s material findings of trustworthiness concern are based on substantial evidence or constitute characterizations or inferences that could be drawn from the record. Adverse decision affirmed. CASENO: 08-10098.a1 DATE: 01/06/2012 DATE: January 6, 2012 In Re: --------- Applicant for Public Trust Position ) ) ) ) ) ) ) ) ADP Case No. 08-10098

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 trustworthiness designation. On October 15, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–trustworthiness concerns raised under Guideline E (Personal Conduct) and Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 27, 2011, after the hearing, Administrative Judge Juan J. Rivera denied Applicant’s request for a trustworthiness designation. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge’s findings of fact contained errors and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge made the following pertinent findings of fact: Applicant is an employee of a Defense contractor. He holds a bachelor’s degree is business marketing. He and his wife separated in 2010. His wife’s daughter from a previous marriage lives with Applicant. The wife provides limited financial support for her daughter. Applicant worked for a law enforcement agency from 1989 until 2005, during which time he held a security clearance. He lost his job after his clearance was revoked. The revocation was the result of Applicant’s financial problems, criminal conduct, and personal conduct issues. The criminal conduct included bad checks and reckless driving. He also used a Government travel card to pay expenses for a family vacation and failed to reimburse the Government. Applicant was disciplined for having failed to report the criminal incidents to his Government employer. He also “disclosed that he had issued another bad check in June 2010 . . . Applicant admitted to issuing the three bad checks, but he claimed that he reviewed his bank account balance prior to issuing the checks.” Decision at 3. Additionally, Applicant filed for Chapter 7 bankruptcy protection in 1998. He stated that he had done so because he wanted to discharge his own personal debts in order to be better able to assist his wife in paying off her own debts that she had brought to the marriage. He also had 19 delinquent debts, unpaid as of the close of the record. These debts included judgments against Applicant in favor of the creditors. In the Analysis, the Judge stated that Applicant accumulated these debts after his discharge in bankruptcy. Applicant attributed his financial problems to periods of unemployment. In 2008, Applicant completed his application for a public trust position. He failed to disclose a 1998 bad check and subsequent criminal charge. He failed to disclose the judgement against him and denied having any debts that were more than 180 days delinquent. In analyzing Applicant’s case for mitigation, the Judge stated that the repeated nature of Applicant’s Guideline E misconduct indicates that he is not learning from his mistakes and that the misconduct is likely to recur. Under Guideline F, he noted that Applicant’s debts were ongoing and concluded that Applicant had not acted responsibly in regard to them. In the whole-person analysis the Judge credited Applicant for his evidence of good character. However, the Judge stated that Applicant’s circumstances show a disregard for his legal obligation to pay his debts. The Judge ultimately concluded that Applicant had not mitigated the trustworthiness concerns alleged in the SOR. Applicant contends that the Judge erred in some of his findings. For example, he claims that his false answers to his trustworthiness application were not intentional and that the Judge erred in finding that he had written three bad checks in 2010 rather than just one. On this last point, we read the challenged finding as referring to three instances over several years, which is consistent with the evidence, not three instances in 2010 as Applicant reads the finding . The Judge’s material findings of trustworthiness concern are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. See, e.g., ADP Case No. 10- 01100 at 2 (App. Bd. Jun. 13, 2011). Applicant has submitted new evidence in support of his appeal, for example character references. We cannot consider new evidence. Directive ¶ E3.1.29. See ADP Case No. 08-09058 at 2 (App. Bd. Dec. 18, 2009). 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)). In light of the entirety of the record evidence, the Judge’s decision not to grant Applicant a trustworthiness designation is sustainable.

ORDER

The Judge’s adverse trustworthiness determination 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; James E. Moody James E. Moody Administrative Judge Member, Appeal Board