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ISCR Case 09-02388.a1 — CASE

ISCR Case 09-02388.a1denied

Case Headnote

ISCR Case No. 09-02388.a1

deniedApr 21, 2010· Hon. Jean E. Smallin· appeal

Summary

The applicant was denied a trustworthiness designation under Guideline F (Financial Considerations) due to significant delinquent credit card debts. Representing herself, the applicant faced concerns over two outstanding credit card debts totaling over $26,000, which were identified as disqualifying conditions under AG ¶ 20(a).

Despite the applicant's claims of medical hardships and unemployment, the judges found that her responses to these financial issues were not reasonable. Her repayment plans were noted to cover only interest, failing to reduce the principal amount of the debts.

While mitigating conditions AG ¶ 20(c) and AG ¶ 20(d) were considered, they were not sufficient to overcome the concerns. The judges affirmed the denial, concluding that the applicant had not adequately demonstrated a responsible approach to resolving her financial difficulties.

Why the Applicant Was Denied

The applicant had two significant delinquent credit card debts totaling over $26,000.
The applicant's repayment plans only covered interest and did not reduce principal.
The applicant failed to demonstrate reasonable responses to her financial issues despite her claims of hardship.

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedFinancial Considerations

Mitigating

AG ¶ 20(c)rejectedMitigating ConditionsThe applicant did not demonstrate reasonable responses to her financial issues.
AG ¶ 20(d)rejectedMitigating ConditionsThe applicant's debts increased over the past 12 months despite employment.

Key Rule Quoted

“Once the government presents evidence raising trustworthiness concerns, the burden shifts to the applicant to establish mitigation.”
— ADP Case No. 07-12305 at 2 (App. Bd. Apr. 23, 2009)

Procedural Posture

SOR issuedAug 27, 2009
Answer filed—Pro se representation
Hearing heldJan 28, 2010
Decision dateApr 21, 2010

Cite For

Insufficient Evidence to Mitigate Financial Concerns Under Guideline F
Burden of Persuasion Shifts to the Applicant After Government Raises Trustworthiness Concerns
Importance of Demonstrating Reasonable Responses to Financial Issues in Trustworthiness Determinations.

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

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’s presentation on appeal is insufficient to overcome the presumption that a Judge considered all the record evidence. Adverse decision affirmed. CASENO: 09-02388.a1 DATE: 04/21/2010 DATE: April 21, 2010 In Re: -----

Applicant for Public Trust Position ) ) ) ) ) ) ) ) ADP Case No. 09-02388

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 trustworthiness designation. On August 27, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–trustworthiness 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 January 28, 2010, after the hearing, Administrative Judge Mark Harvey denied Applicant’s request for a trustworthiness designation. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge properly applied the pertinent mitigating conditions; whether the Judge’s whole-person analysis was erroneous; and whether the Judge’s adverse trustworthiness determination was arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge found that Applicant had two delinquent debts, both for credit cards, one in the amount of $15,082 and the other in the amount of $11,861. Applicant had entered into repayment plans for both of these debts. For the former one, she is to pay $400 a month, beginning December 2009. This payment will only cover the interest cost rather than reduce principal. For the second she is to pay $250 a month, beginning after the close of the record. Applicant also had a smaller debt owed to a credit union, which she had paid and which the Judge resolved in her favor. Applicant’s youngest child was born prematurely and required medical assistance to survive. Another child also had serious medical problems. Additionally, Applicant herself suffered a fall and has pain in her back and hip, for which she cannot afford physical therapy. She also experienced unemployment in the recent past. She and her husband have around $1,100 each month after expenses. She enjoys an excellent reputation at work for the quality of her job performance, integrity, professionalism, and contribution to her employer’s mission. Applicant contends that the Judge did not extend the proper weight to her mitigating evidence, for example the medical and unemployment issues which impacted her financial situation. She also mentions the fact that her debts were not due to deliberate failure to pay and that she is making good on current expenses. We have examined these contentions in light of the record as a whole. A Judge is presumed to have considered all the evidence in the record. See, e.g., ADP Case No. 08-06284 at 2 (App. Bd. Dec. 10, 2009). In this case, the Judge discussed Applicant’s financial and medical issues, as well as other circumstances underlying her financial problems. However, he also concluded that she had not demonstrated reasonable responses to the financial consequences of her misfortunes. “In the last 12 months, she and her husband were employed, yet they only paid about $2,000 towards her SOR debts.” Decision at 10. He also noted that these debts have actually increased during the past 12 months by more than she has paid them down. Applicant’s presentation on appeal is not sufficient to rebut the presumption that the Judge has considered all of the evidence. The Judge has plausibly explained why he concluded that Applicant had failed to meet her burden of persuasion as to the mitigating conditions. See, e.g., ADP Case No. 07-12305 at 2 (App. Bd. Apr. 23, 2009) (“Once the government presents evidence raising trustworthiness concerns, the burden shifts to the applicant to establish mitigation.”) Concerning the whole-person analysis, we conclude that the Judge considered the totality of Applicant’s conduct in reaching his decision. Directive ¶ E2.2. See also ISCR Case No. 08-02464 at 3 (App. Bd. Jul. 16, 2009). After reviewing the record, we conclude that 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 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 unfavorable trustworthiness determination is sustainable.

ORDER

The Judge’s adverse trustworthiness determination is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin 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