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ISCR 08-10936: Guideline E security clearance appeal, denied (2009) · CASE

ISCR Case 08-10936denied

Case headnote

ISCR Case No. 08-10936

Dec 10, 2009· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, representing himself, was denied clearance under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from two primary issues: numerous delinquent debts and significant omissions regarding past arrests on his security clearance application.

Specifically, the applicant had 29 listed debts but had only paid off one. The judge noted a complete lack of effort or a plan to address the remaining financial obligations. Furthermore, the applicant omitted multiple arrests from his application and failed to provide any credible explanation for these omissions, despite the clarity of the application questions.

The decision emphasized the applicant's failure to mitigate the security concerns raised by both his financial irresponsibility and his lack of candor. Consequently, the judge found that the applicant did not meet the standards for a security clearance, leading to the denial.

Conditions referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

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 issuedMay 27, 2009
Answer filed—
Hearing heldSep 21, 2009
Decision dateDec 10, 2009

Cite for

Failure to Mitigate Financial Concerns Under Guideline F
Omissions on Security Clearance Applications Under Guideline E
Self-representation and Its Implications in Security Clearance Hearings

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 security clearance based on financial considerations and personal conduct. The applicant raised several issues on appeal, including due process concerns and the adequacy of the Judge's analysis. The Board affirmed the decision, finding no harmful errors in the Judge's ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowThomas M. Crean denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

No specific harmful error alleged, raised by the applicantRejected
Applicant contended he was denied due process due to lack of representation.
No specific harmful error alleged, raised by the applicantRejected
Applicant argued the Judge failed to consider all record evidence.
No specific harmful error alleged, raised by the applicantRejected
Applicant claimed the Judge's whole-person analysis was erroneous.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant asserted the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Administrative Judge's decision, affirming that the Judge's conclusions were supported by substantial evidence and were not arbitrary or capricious.

Standard of review applied

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

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

APPEARANCES

Decision at 2. See Directive E3.1.3: “A letter of instruction with the SOR shall explain that applicant or Department Counsel may request a hearing.” The Department Counsel’s request for a hearing shall be within 20 days of receipt of an applicant’s answer to the SOR. Directive E3.1.7. DATE: December 10, 2009 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-10936

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 May 27, 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). Department Counsel requested a hearing. On September 21, 2009, after the hearing, Administrative Judge Thomas M. Crean denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. “Q: [W]hy didn’t you mark down [on the SCA] that you had bills that were outstanding?” . . . A: Honestly, I don’t know why I didn’t . . . I don’t think I was trying to hide it. It’s just I guess I needed to get a Credit Report and see what my credit was and you had brought it to my attention.” Tr. at 26. “Q: Why did you only list one of your arrests and not the other four in your [SCA]? A: I have no excuse. I don’t know why I didn’t . . . Maybe it was so long ago I forgot. I don’t want to say I lied. I just didn’t do it. I don’t know if I was in a hurry to fill out the questionnaire. But you all found it pretty quick and straightened me out.” Tr. at 35. Applicant raised the following issues on appeal: whether he was denied due process because he was not represented by counsel; whether the Judge failed to consider all the record evidence; whether the Judge’s whole-person analysis was erroneous; and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge found that Applicant had numerous delinquent debts. Of the 29 debts listed in the SOR, Applicant had paid off only one. For the others he had made no attempt to make payments, despite having a sufficient amount of money to do so. Additionally, Applicant answered “no” to questions on the security clearance application (SCA) inquiring about debts delinquent over 180 days and about whether he currently had debts delinquent for 90 days. These answers were not true. On a SCA question concerning charges or convictions related to alcohol or drugs, Applicant omitted four charges for illegal possession of alcohol; public intoxication and resisting arrest; possession of marijuana; and public intoxication and domestic violence. Regarding the delinquent debts, the Judge concluded, inter alia, that Applicant had not demonstrated any effort to pay off his remaining debts, that he had not presented evidence of a plan to do so, and that he had not demonstrated that his failure to pay his debts is due to causes outside his control. Regarding the omissions on the SOR, the Judge stated that the questions were clear and unambiguous; that Applicant’s educational attainments were such that he should have been able to understand their meaning; and that he had provided no credible reason for having omitted the information in question. Accordingly, the Judge concluded that Applicant had failed to mitigate the security concerns arising from his financial condition and from his omissions to the SOR. Applicant contends that his ability to present his case was hampered by his lack of representation. The record demonstrates, however, that prior to the hearing Applicant was informed in writing of his rights, including the right to counsel or some other representative. Furthermore, at the beginning of the hearing the Judge asked Applicant if he understood his right to counsel and if he intended to represent himself. Applicant answered “yes” to both questions. Tr. at 6. A review of the entire record discloses no basis to conclude that Applicant was denied the rights due him under the Directive or that he had not been adequately advised of those rights. ISCR Case No. 08-03110 at 2 (App. Bd. Jan. 27, 2009). “Having decided to represent himself during the proceedings below, Applicant cannot fairly complain about the quality of his self-representation or seek to be relieved of the consequences of his decision to represent himself.” ISCR Case No. 08-03110 at 2 (App. Bd. Jan. 27, 2009). Applicant also contends that the Judge failed to consider his explanations for the conduct giving rise to the security concerns in this case. 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). Applicant has pointed to nothing in the record that would rebut the presumption. Furthermore, a party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation thereof, is not sufficient to demonstrate the Judge either failed to consider all of the evidence or mis-weighed it. See, e.g., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). In his appeal brief, Applicant submits matters not contained in the record, which the Board cannot consider. 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); ADP Case No. 08-03721 at 2 (App. Bd. Oct. 28, 2009). 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 9. “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