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ISCR Case 09-00620.a1 — CASE

ISCR Case 09-00620.a1denied

Case Headnote

ISCR Case No. 09-00620.a1

Aug 26, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

A 27-year-old applicant was denied a security clearance under Guideline F (Financial Considerations) due to debts totaling approximately $55,695. The appeal board affirmed this denial, concluding that the applicant's submitted evidence was insufficient to mitigate the government's security concerns regarding financial responsibility.

The denial was based on several factors. The applicant failed to demonstrate that the Judge had mis-weighed the evidence presented. Significant concerns remained regarding the applicant's financial history and a lack of a consistent track record in making payments toward the outstanding debts.

While some mitigating evidence was present in the record, it was not compelling enough to warrant a favorable security clearance determination. The appeal board ultimately found that the disqualifying conditions raised under AG ¶ 19 outweighed the mitigating conditions applied under AG ¶ 20, leading to the denial of the clearance.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20rejectedFinancial ConsiderationsThe Judge reasonably explained why the evidence presented in mitigation was insufficient to overcome the government’s 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.’”
— Dep’t of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedOct 9, 2009
Answer filed—
Hearing heldJun 11, 2010
Decision dateAug 26, 2010

Cite For

Insufficient Evidence of Financial Responsibility Under Guideline F
Affirmation of Denial Based on Financial History
Limitations of the Appeal Board's Authority Regarding Probationary Clearances

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 under Guideline F. The applicant argued that the Judge did not adequately weigh his evidence of mitigation. The Board affirmed the Judge's decision, finding no harmful error in the weighing of evidence.

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

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge did not give adequate weight to his evidence of mitigation.

Why the Board ruled this way

The Board found no error in the Judge's decision, affirming that the Judge adequately weighed the evidence and articulated a satisfactory explanation for the denial of the security clearance.

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
Jean E. Smallin
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: Applicant failed to demonstrate that the Judge mis-weighed the record evidence. The Board has no authority to grant Applicant a probationary security clearance. Adverse decision affirmed. CASENO: 09-00620.a1 DATE: 08/26/2010 DATE: August 26, 2010 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-00620

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 October 9, 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 June 11, 2010, after the hearing, Administrative Judge Michael H. Leonard 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 gave adequate weight to his evidence of mitigation. Applicant also requests that the Board grant him a three-month probationary security clearance, during which time he could prove his financial responsibility. Finding no error, we affirm the Judge’s decision. The Judge made the following relevant findings of fact: Applicant is 27 years old and has one child for whom he voluntarily pays child support when he can afford to do so. Applicant has a job offer as a research analyst, but must have a security clearance in order to begin working. Applicant has been unemployed since September 2009, when he was laid off from a job with an electronics company. At present, Applicant’s only income is from unemployment compensation, which amounts to only $900 to $1,000 per month. Applicant has a history of financial problems. Applicant traces his financial difficulties to an on-the-job back injury which prevented him from working from December 2005 until April 2006. The workers’ compensation Applicant received at that time did not cover his expenses. Applicant used credit cards to pay his living expenses and fell behind on his bills. The SOR alleges 13 debts, six of which are student loans. As of November 2009, the student loans totaled about $55,695. Applicant provided documentation to show that he has made two $10 payments on each of four of the debts, payments totaling $45 on another, and payments totaling about $374 toward the student loans. Applicant contends that the Judge did not give adequate weight to his evidence of mitigation. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance determination. 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 that 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. 06-23384 at 3 (App. Bd. Nov. 23, 2007). A review of the record indicates that the Judge weighed the mitigating evidence offered by Applicant against his financial history and considered the possible application of relevant mitigating conditions and factors. Decision at 6-8. Citing Applicant’s history of financial difficulties, the large amount of his debt, and his lack of a track record in making payments, the Judge reasonably explained why the evidence Applicant had presented in mitigation was insufficient to overcome the government’s security concerns. Id. The Board does not review a case de novo. The mitigating 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). In his appeal brief, Applicant included a request that the Board grant him a probationary clearance for a period of at least three months to allow him to prove his financial responsibility. The Board has no authority to grant such a request. See, e.g., ISCR Case No. 06-22986 at 2 (App. Bd. Nov. 26, 2008). 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, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines 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.’” Dep’t of the Navy v. Egan, 484 U.S. 518, 528 (1988). Accordingly, the Judge’s adverse decision is sustainable.

ORDER

The Judge’s decision denying Applicant a security clearance 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board