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ISCR Case 09-01280.a1 — CASE

ISCR Case 09-01280.a1denied

Case Headnote

ISCR Case No. 09-01280.a1

Jan 10, 2011· Hon. Jean E. Smallin· appeal

Summary

A 47-year-old male applicant, married to his fifth wife, was denied a security clearance under Guideline F (Financial Considerations) due to significant financial concerns. The denial stemmed from 39 delinquent debts totaling $42,919, which the applicant admitted to.

The applicant attributed his financial difficulties to poor spending habits, and evidence showed his monthly expenses consistently exceeded his income, indicating ongoing financial instability. While Disqualifying Condition F3 was raised, Mitigating Conditions F2 and F3 were considered.

Ultimately, the Judge determined that the applicant failed to provide sufficient evidence to mitigate the security concerns associated with his substantial and ongoing financial issues. Consequently, the Board affirmed the denial of his security clearance.

Conditions Referenced

Disqualifying

F3raisedInability or Unwillingness to Satisfy Debts

Mitigating

F2rejectedThe Conditions That Resulted in the Financial Difficulties Were Beyond the Person's ControlThe Judge found that the applicant's financial issues were due to poor spending habits.
F3rejectedThe Person Has Made Good Faith Efforts to Repay Overdue Creditors or Has Taken Significant Steps to Resolve DebtsThe applicant's intention to file for bankruptcy was not sufficient to mitigate the concerns.

Key Rule Quoted

“A history of financial problems is a circumstance that raises security concerns.”

Procedural Posture

SOR issuedMar 11, 2010
Answer filed—
Hearing heldSep 7, 2010
Decision dateJan 10, 2011

Cite For

Denial of Security Clearance Due to Financial Concerns Under Guideline F
Insufficient Evidence to Mitigate Financial Issues
The Importance of a Rational Connection Between Facts and Decisions 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 an applicant seeking a security clearance who was denied due to financial concerns under Guideline F. The applicant argued that the Judge's decision was arbitrary and did not adequately consider mitigating evidence. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJennifer I. Goldstein — 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 contended that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board affirmed the Judge's decision, finding that the Judge's conclusions were supported by substantial evidence and that the decision was not arbitrary, capricious, or contrary to law. The Board noted that the Judge properly weighed the evidence and articulated a rational connection between the facts and the decision made.

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 D. Hipple
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: The Board and the Judge are bound by the provisions of the Directive. The Board does not have authority to waive provisions of the Directive. Nor does it have authority to entertain challenges to the wisdom or legality of the Directive. Adverse decision affirmed. CASENO: 09-01280.a1 DATE: 01/10/2011 DATE: January 10, 2011 In Re: ---------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-01280

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 March 11, 2010, 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 September 7, 2010, after the hearing, Administrative Judge Jennifer I. Goldstein 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 decision is arbitrary, capricious, or contrary to law. Consistent with the following discussion, we affirm the Judge’s decision. The Judge made the following factual findings: Applicant is 47 years old and is currently married to his fifth wife. The SOR alleges 39 delinquent debts totaling $42,919. Applicant admits all of the debts with some qualifications. Applicant has not made payments on 32 of the debts. Applicant is indebted to a state Attorney General for $22,000 for delinquent child support. Applicant currently makes child support payments through payroll deductions and has disputed the amount of the arrearage with the state, but the state has not reduced the amount of his debt. Applicant attributes his financial situation to “bad spending habits,” i.e., buying things on the internet which he did not need. Decision at 3. Applicant’s financial difficulties are ongoing, and his monthly expenses exceed his income. Applicant intends to file for Chapter 7 bankruptcy, but cannot do so until he pays his attorney’s full retainer fee. Applicant maintains that the Judge did not give adequate attention to his case and makes general comments about the fairness of the decision. To support his argument, Applicant points to the Judge’s statement that she had not reviewed Applicant’s case before the hearing. Applicant also contends that the Judge incorrectly stated the dates of his marriages and divorces. The fact that the Judge did not review Applicant’s case before the hearing is not indicative of error, since Applicant’s testimony and the parties’ evidence submitted at the hearing and afterward were important parts of the record which were not available to the Judge prior to the hearing. Applicant’s attribution of error with regard to the dates of his marriages and divorces is clearly without basis, since the Judge did not include any marriage or divorce dates in her decision. Likewise, Applicant’s comments on the fairness of the decision, especially concerning the clearances granted to others who he says were later convicted of espionage, do not establish error, since the Board and the Judge are bound by the provisions of the Directive as they apply to Applicant’s case. The Board does not have the authority to waive provisions of the Directive. See, e.g., ISCR Case No. 08-08012 at 2 (App. Bd. Nov. 20, 2009). Nor does the Board have the authority to entertain challenges to the wisdom or legality of provisions of the Directive. See, e.g., ISCR Case No. 09-03724 at 2 (App. Bd. Mar. 23, 2010); and ISCR Case No. 04-01961 at 3 (App. Bd. Jul. 12, 2007). Applicant contends that he has mitigated any concerns that might exist under Guideline F and that the Judge either did not consider or did not give adequate weight to his evidence of mitigation. In his appeal, Applicant restates some of the mitigating evidence that is contained in the record. In particular, Applicant states that he submitted documentation (Applicant Exhibits (AE) B-D) after the hearing, according to the Judge’s instructions; yet he does not believe that the Judge mentioned those materials in her decision. There is a rebuttable presumption that the Judge considered all the record evidence, unless the Judge specifically states otherwise; and there is no requirement that the Judge mention or discuss every piece of record evidence when reaching a decision. See, e.g., ISCR Case No. 07-18303 at 2 (App. Bd. Nov. 13, 2008). Applicant submitted one exhibit at the hearing and three while the record was held open afterward. The Judge cited all four exhibits in her decision, specifically mentioning Applicant’s dealings with his bankruptcy attorney (AE C) and his current child support payments (AE D).

Applicant admitted, with some qualifications, the SOR allegations against him. The burden then shifted to Applicant to extenuate or mitigate the security concerns raised by those allegations. Directive ¶ E3.1.15. The Judge concluded that Applicant did not present evidence sufficient to overcome the security concerns raised. The application of disqualifying and mitigating conditions and whole-person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. Thus, 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. Here, the Judge did not give as much weight to Applicant’s mitigating evidence as Applicant would have liked. However, 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. 08-01105 at 2 (App. Bd. Dec. 15, 2008). Applicant points out that being denied a security clearance would have an adverse impact on his career and his continued ability to improve his financial situation. However, the effect that an unfavorable decision may have on an applicant is not a relevant or material consideration in evaluating his or her security eligibility. See, e.g., ISCR Case No. 08-07528 at 2 (App. Bd. Dec. 29, 2009). 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 whole person factors. Decision at 5-7. The Judge reasonably explained why the evidence Applicant had presented in mitigation was insufficient to overcome all of the government’s security concerns. The Judge made favorable formal findings concerning two of the debts alleged in the SOR. Id. 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). 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, 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). A history of financial problems is a circumstance that raises security concerns. See, e.g., ISCR Case No. 03-09483 at 4 (App. Bd. Nov. 17, 2004). In light of the record here, the Board concludes that the Judge had a rational basis for concluding that Applicant’s history of financial difficulties raised such concerns and that Applicant did not present evidence sufficient to extenuate or mitigate those concerns. Accordingly, the Judge’s decision is sustainable.

ORDER

The Judge’s decision denying Applicant a security clearance is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, 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