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ISCR Case 08-10491.a1 — CASE

ISCR Case 08-10491.a1denied

Case Headnote

ISCR Case No. 08-10491.a1

May 11, 2010· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance primarily due to unresolved delinquent credit card debts, falling under Guideline F (Financial Considerations). The denial was based on Disqualifying Condition F1, which addresses financial irresponsibility.

At the close of the record, the applicant still had outstanding delinquent credit card debts. The judge determined that the applicant had not demonstrated responsible behavior concerning these debts, nor had he made a good-faith effort to repay his creditors. Consequently, insufficient evidence was provided to mitigate the financial concerns raised.

The appeal board affirmed the denial, concluding that the applicant's arguments did not demonstrate that the judge's decision was arbitrary, capricious, or contrary to law. The denial of the security clearance was upheld.

Conditions Referenced

Disqualifying

F1raisedFinancial 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 issuedJul 17, 2009
Answer filed—Applicant requested a decision on the written record.
Hearing heldFeb 24, 2010
Decision dateMay 11, 2010

Cite For

Insufficient Evidence of Mitigation for Financial Concerns Under Guideline F
Affirmation of Adverse Decisions Based on Unresolved Debts
Presumption That Judges Consider All Evidence in the Record

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 and personal conduct. The applicant argued that the Judge's decision was arbitrary and capricious. The Board reviewed the appeal and found no error, affirming the Judge's decision to deny the clearance.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowShari Dam — denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline E

What the Board reviewed

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

Why the Board ruled this way

The Board found no harmful error in the Judge's decision, affirming that the Judge properly weighed the evidence and articulated a satisfactory explanation for the adverse decision.

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

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: Applicant failed to demonstrate that the Judge weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. Applicant submitted new evidence not contained in the record, which the Board cannot consider. Adverse decision affirmed. CASENO: 08-10491.a1 DATE: 05/11/2010 DATE: May 11, 2010 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-10491

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 July 17, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On February 24, 2010, after considering the record, Administrative Judge Shari Dam denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse security The Judge’s favorable findings under Guideline E are not at issue in this appeal.

clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge found that Applicant had delinquent credit card debts, unresolved at the close of the record. Applicant attributed these debts to poor financial decisions he made while young. He no longer uses credit cards. In the Analysis portion of her decision, the Judge concluded that Applicant’s delinquent debts raised Guideline F security concerns. She further concluded that the record did not contain sufficient evidence of mitigation to justify the grant of a clearance. For example, the Judge concluded that there was little or no evidence to demonstrate that Applicant has behaved responsibly in regard to his debts, that he has initiated a good-faith effort to repay his creditors, or that his financial problems are behind him and are unlikely to recur. Accordingly, the Judge concluded that Applicant had failed to mitigate the security concerns in his case. In support of his appeal Applicant has submitted new matters, for example information about his credit score obtained after the close of the record. The Board 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. 08-06875 at 2 (App. Bd. Oct. 29, 2009); ISCR Case No. 08-06518 at 2 (App. Bd. Mar. 3, 2009). Applicant appears to contend on appeal that the Judge did not properly weigh his mitigating evidence, for example that he no longer uses a credit cards. However, a Judge is presumed to have considered all the evidence in the record. See, e.g., ISCR Case No. 07-00196 at 3 (App. Bd. Feb. 20, 2009); ISCR Case No. 07-00553 at 2 (App. Bd. May 23, 2008). In this case, the Judge found that Applicant no longer uses credit cards, and she considered other mitigating evidence as well, such as his good work record and the fact that he successfully disputed two of the debts alleged in the SOR. However, she plausibly explained why the record as a whole is not sufficient to mitigate Applicant’s security concerns. Applicant’s argument on appeal is not sufficient to demonstrate that the Judge weighed the record evidence in a way that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-21819 at 2 (App. Bd. Aug. 13, 2009); ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). 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 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