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ISCR Case 09-00033.a1 — CASE

ISCR Case 09-00033.a1denied

Case Headnote

ISCR Case No. 09-00033.a1

Aug 11, 2010· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, representing himself, was denied clearance under Guideline F (Financial Considerations) due to significant financial issues. The applicant had 27 delinquent accounts totaling approximately $86,707, which raised concerns about his reliability and trustworthiness.

The appeal board affirmed the denial, finding that the applicant's claims of mitigating circumstances were insufficient. Specifically, the applicant failed to demonstrate that the judge's findings regarding his total indebtedness were incorrect. The judge also concluded that the applicant did not act responsibly in resolving his delinquent accounts.

Given these factors, the applicant's security clearance was ultimately denied.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20rejectedFinancial Considerations Mitigating ConditionsThe judge indicated that the mitigating conditions did not apply or applied with insufficient strength to mitigate the security concerns.

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 issuedSep 11, 2009
Answer filed—
Hearing heldMay 10, 2010
Decision dateAug 11, 2010

Cite For

Affirmation of Denial Based on Significant Financial Issues Under Guideline F
Insufficient Mitigating Circumstances to Outweigh Financial Concerns
Standards for Evaluating Reliability and Trustworthiness in Security Clearance Cases

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 assessment of his total indebtedness was incorrect. The Board affirmed the Judge's decision, finding that the evidence supported the Judge's findings and that the decision was not arbitrary or capricious.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowErin C. Hogan — 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 contends that the Judge's statement regarding his total indebtedness is incorrect.

Why the Board ruled this way

The Board found that the Judge's findings regarding the Applicant's financial delinquency were supported by substantial evidence and that the Judge's decision was not arbitrary, capricious, or contrary to law.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
William S. Fields

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 review of the evidence shows that the delinquency amounts stated by the Judge are supported by the record. Adverse decision affirmed. CASENO: 09-00033.a1 DATE: 08/11/2010 DATE: August 11, 2010 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-00033

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 September 11, 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 Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On May 10, 2010, after the hearing, Administrative Judge Erin C. Hogan 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 adverse security clearance decision is arbitrary, capricious, or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable decision. The Judge found that Applicant’s security clearance background investigation revealed that he has 27 delinquent accounts which total approximately $86,707. She also found that Applicant has eighteen delinquent consumer debts with an approximate total of $14,617. These debts are listed in Applicant’s credit reports. Applicant also owes delinquent income taxes and he has substantial child support arrearages. The Judge concluded that while circumstances beyond his control contributed to his financial problems, he has not acted responsibly with regard to resolving his delinquent accounts. While he has taken action to address some of his debts, Applicant’s unresolved debts raise questions about his reliability, trustworthiness, and good judgment. Applicant’s principal assignment of error on appeal is his contention that the Judge’s statement regarding his total indebtedness is incorrect. He asserts that the amount of his indebtedness that was transcribed from an old credit report is incorrect and this error caused the Judge to make the decision that he is not trustworthy. An evaluation of Applicant’s claim is hampered by the fact that Applicant, despite making a general reference to an $89,000 figure, does not specify a dollar amount from a particular credit report that he believes to be in error (there are three credit reports in the record) and he does not indicate what he believes his total amount of indebtedness to be. The Judge referenced an $86,000 figure in her decision and indicated that it was obtained from Applicant’s background investigation. She went on to make independent findings of fact concerning individual components of Applicant’s debt profile, including child support, rental and related real estate debts, automobile loans, consumer debts, and taxes. A review of the record evidence leads the Board to conclude that the delinquency amounts stated by the Judge in her decision are supported by the record evidence. Applicant has failed to establish error. Applicant asserts that he is accomplishing a reduction in his debts. 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. She discussed the applicability of the mitigating factors listed under Guidelines F and indicated in some detail why the mitigating conditions either did not apply or applied with insufficient strength to ultimately mitigate the security concerns raised in the case. 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 her 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: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board