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ISCR Case 09-02800.a1 — CASE

ISCR Case 09-02800.a1denied

Case Headnote

ISCR Case No. 09-02800.a1

Oct 8, 2010· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance primarily under Guideline F (Financial Considerations), with Guideline E (Personal Conduct) also cited. The denial stemmed from 21 delinquent debts totaling approximately $95,203. Most of these debts remained unpaid despite the applicant maintaining a steady income since 2007.

Further contributing to the denial was the applicant's failure to follow through on debt counseling and consolidation efforts. Although he expressed an intent to file for bankruptcy, he did not retain an attorney for this purpose until shortly before his hearing.

While the applicant presented some mitigating evidence, it was deemed insufficient to overcome the significant financial delinquencies and lack of consistent effort to resolve them. Consequently, the adverse decision was upheld, and the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20rejectedFinancial ConsiderationsThe applicant's mitigating evidence was insufficient to overcome the government's security concerns.

Key Rule Quoted

“The presence of some mitigating evidence does not alone compel the Judge to issue a favorable security clearance decision.”

Procedural Posture

SOR issuedDec 23, 2009
Answer filed—
Hearing heldJul 26, 2010
Decision dateOct 8, 2010

Cite For

Insufficient Mitigation of Financial Issues Under Guideline F
Importance of Weighing Evidence in Security Clearance Decisions
Criteria for Evaluating Ongoing Financial Problems in 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 was filed by the applicant after the Administrative Judge denied his request for a security clearance based on financial considerations and personal conduct. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding that the Judge properly weighed the evidence and articulated a rational basis for the denial.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMatthew E. Malone — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge’s adverse decision is arbitrary, capricious or contrary to law.

Why the Board ruled this way

The Board concluded 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.

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

Jean E. Smallin
William S. Fields
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: The presence of some mitigating evidence does not alone compel the Judge to issue a favorable security clearance decision. Adverse decision affirmed. CASENO: 09-02800.a1 DATE: 10/08/2010 DATE: October 8, 2010 In Re: ------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-02800

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 December 23, 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 hearing. On July 26, 2010, after the hearing, Administrative Judge Matthew E. Malone denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse decision is arbitrary, capricious or contrary to law. Applicant contends that the Judge’s adverse decision should be reversed because the Judge did not correctly weigh the evidence. In his brief he states that all events concerning his financial situation were provided to DOHA during the hearing. He then summarizes the evidence and argues why it should support a favorable determination. Applicant’s argument does not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. 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 made the following relevant findings of fact: Applicant had accrued 21 delinquent debts totaling approximately $95,203. Decision at 2. Many of the debts had originally arisen when Applicant became unemployed in 2006 and experienced divorce-related support obligations. Id. at 7. Even though Applicant has had a steady income since 2007, most of his debts remained unpaid and had not been addressed in a constructive manner. Id. at 8-9. At the time of the hearing, Applicant still owed $54,000 in delinquent debt. Id. at 7. He had failed to follow through on a debt counseling and consolidation effort in 2008. Id. at 9. Applicant intended to file for federal bankruptcy protection, but had not retained an attorney for that purpose until less than a week before his hearing. Id. at 8. In light of the foregoing, the Judge could reasonably conclude that Applicant’s financial problems were still ongoing and that he had not met his burden of persuasion as to mitigation. See, e.g., ISCR Case No. 05-07747 at 2 (App. Bd. Jul. 3, 2007). The Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. He found in favor of Applicant under Guideline E and as to seven of the SOR factual allegations under Guideline F. However, he reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. 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 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 unfavorable security clearance decision under Guideline F is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance 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