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ISCR Case 09-01425.a1 — CASE

ISCR Case 09-01425.a1denied

Case Headnote

ISCR Case No. 09-01425.a1

Jan 15, 2010· Hon. Jeffrey D. Billett· appeal

Summary

The applicant, representing himself, was denied a security clearance under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from numerous undisclosed debts that were over 180 days delinquent, and the applicant's provision of false information regarding these debts on his security clearance application.

While the applicant admitted to the allegations, he argued on appeal that the judge failed to consider favorable evidence, such as his divorce and a prior top secret clearance. However, the appeal board affirmed the denial, noting that the applicant did not demonstrate a connection between his financial issues and his divorce, nor did he show steps taken to resolve his debts.

The board emphasized the applicant's failure to mitigate security concerns, upholding the presumption that the judge considered all presented evidence. The denial was based on the applicant's admitted delinquent debts, the false information provided, and the lack of demonstrated mitigation efforts.

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 issuedApr 20, 2009
Answer filed—Applicant represented himself.
Hearing held—Decision made on written record.
Decision dateJan 15, 2010

Cite For

Affirmation of Adverse Security Clearance Decisions Based on Undisclosed Debts
Presumption That Judges Consider All Evidence in the Record
Standards for Granting Security Clearances in Relation to National Security Interests

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 who was denied a security clearance due to financial considerations and personal conduct issues. The applicant argued that the Judge did not consider all evidence and misapplied mitigating conditions. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMartin H. Mogul — denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline E

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant argued that the Judge did not consider all evidence.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant contended that the Judge erred in applying mitigating conditions.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant claimed the Judge's 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 and affirmed the adverse security clearance decision based on the evidence presented.

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
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; Guideline E DIGEST: There is a rebuttable presumption that the Judge has considered all the record evidence. Applicant arguments on appeal fail to overcome that presumption. Adverse decision affirmed. CASENO: 09-01425.a1 DATE: 01/15/2010 DATE: January 15, 2010 In Re: ----

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-01425

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The SOR alleged that Applicant deliberately failed to disclose his debts over 180 days. In his response to the SOR, Applicant admitted this allegation.

The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On April 20, 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 October 29, 2009, after considering the record, Administrative Judge Martin H. Mogul denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge considered all of the record evidence; whether the Judge erred in his application of the mitigating conditions; 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 has numerous delinquent debts. Applicant denied some of the debts and submitted a decree of divorce from his ex-wife. However, the Judge stated that Applicant had not provided evidence to demonstrate that his financial problems were connected to the divorce. The Judge also observed that Applicant provided no evidence as to why he has not used his after-expenses income to pay off debts. On the security clearance application (SCA), Applicant answered “no” to a question inquiring about debts delinquent more than 180 days. This answer was not true, in view of the fact that several of the debts alleged in the SOR were within the scope of the question and, therefore, required an affirmative answer. The Judge concluded that Applicant had failed to mitigate the security concerns arising from his debts and from his false answer to the SCA question. Applicant contends that the Judge did not consider favorable evidence, such as his divorce and the fact that he has held a top secret clearance for twelve years. A Judge is presumed to have considered all the evidence in the record, and Applicant’s submission on appeal is not sufficient to rebut that presumption. 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 contends that his debts over 180 days were ones which had been incurred by his ex-wife in his name during the course of the marriage. Applicant’s appeal submission does not demonstrate that this contention, even if true, would mitigate the security concerns in his case, especially the one arising from his false answer to the SCA. 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 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 7. “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: 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board .