CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 09-02926.a1 — CASE

ISCR Case 09-02926.a1denied

Case Headnote

ISCR Case No. 09-02926.a1

May 11, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline F (Financial Considerations) due to approximately $50,000 in delinquent debt. The appeal board affirmed this denial, citing the applicant's failure to demonstrate a sufficient track record of debt repayment.

The board found that the applicant's financial history included significant delinquent debt and lacked evidence of financial reform. While the applicant made promises of future payment, these were deemed insufficient without a proven history of responsible financial behavior.

Specifically, Disqualifying Condition AG ¶ 20(a) was raised, indicating a history of not meeting financial obligations. Although Mitigating Conditions AG ¶ 20(c) and AG ¶ 20(d) were considered, they were not applied, as the applicant did not demonstrate a sustained effort to repay debts or a clear resolution of the financial issues. The security clearance was ultimately denied.

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedFinancial Considerations

Mitigating

AG ¶ 20(c)rejectedFinancial ConsiderationsThe applicant's plan to file for bankruptcy and discharge debts was not sufficient to mitigate the security concerns.
AG ¶ 20(d)rejectedFinancial ConsiderationsThe applicant did not provide evidence of a track record of financial reform.

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 issuedDec 8, 2009
Answer filed—Applicant requested a decision on the written record.
Hearing heldMar 30, 2010
Decision dateMay 11, 2010Appeal affirmed the adverse decision.

Cite For

Insufficient Evidence of Debt Repayment Under Guideline F
Importance of a Track Record of Financial Responsibility
Limitations on New Evidence During Appeal Process

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 a denial of a security clearance based on financial considerations under Guideline F. The applicant argued that the Judge's decision was arbitrary and capricious, but the Board found no error and affirmed the denial.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowNoreen A. Lynch — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that 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, affirming that the applicant did not demonstrate a sufficient track record of debt repayment to mitigate security concerns.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael Y. Ra’anan — Chair
Jean E. Smallin
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 DIGEST: Applicant failed to demonstrate a track record of debt repayment sufficient to mitigate the security concerns in his case. The Board cannot consider new evidence. Adverse decision affirmed. CASENO: 09-02926.a1 DATE: 05/11/2010 DATE: May 11, 2010 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-02926

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 8, 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 decision on the written record. On March 30, 2010, after considering the record, Administrative Judge Noreen A. Lynch 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. Finding no error, we affirm the Judge’s adverse security clearance decision. The Judge made the following relevant findings of fact: Applicant underwent periods of unemployment while working for several employers. One period of unemployment lasted from January 2008 until April 2008. Applicant then worked as a real estate loan officer until October 2008. The pay for that job was based on commission, and Applicant did not earn enough to support his family. At the same time, Applicant’s wife was on unpaid maternity leave. Applicant missed payments on his debts because of his reduced income in 2008. Applicant admitted that he owes approximately $50,000 in delinquent debt. The delinquencies include a mortgage, a second mortgage, two credit cards, a loan for a television, a car loan, and a deficiency due to the voluntary repossession of a car. At the time the Judge was considering the record, Applicant also had student loans that were in forbearance. Applicant and his wife have met with an attorney to seek advice on filing for bankruptcy under Chapter 13. They have developed a plan for dealing with the delinquent debts and discharging them within five years under bankruptcy. Applicant will meet with the attorney again in late March 2010 to file for bankruptcy. Applicant is sure he will be able to make the payments required under the plan ($630 per month) while resuming his mortgage payments ($1,153 per month) and keeping up with current expenses. In his appeal brief, Applicant states that he does not dispute the Judge’s factual findings, but asks that the Board grant him a clearance based on the evidence already in the record and on new evidence he provides in his brief. Applicant explains steps he is currently taking to file for bankruptcy and otherwise improve his financial situation. As in the record below, Applicant indicates that he has a plan under which all of his debts will be discharged within five years after he files for bankruptcy. Applicant also includes letters of recommendation and other information about his financial circumstances. To the extent that the information was not already in the record below, it constitutes new evidence, and the Board cannot consider it. See Directive ¶ E3.1.29. Also, Applicant seeks a continuance to allow him to develop additional (favorable) evidence. An applicant is not entitled to a delayed or deferred adjudication of his or her security eligibility. See, e.g., ISCR Case No. 06-22044 at 2 (App. Bd. Feb. 28, 2008). Compare ISCR Case No. 05-06059 at 2 (App. Bd. Mar. 2, 2007), in which the Board stated that it “does not review cases de novo, and has no authority to continue Applicant’s case to allow [him] to work on [his] financial problems.” On appeal, Applicant emphasizes his plan to be debt-free within five years. The Judge considered Applicant’s plan in her decision, but stated that Applicant “has not established a track record of financial reform.” Decision at 5. Board decisions indicate that promises of future payment are not a substitute for a track record of debt payment or other responsible approaches. See, e.g., ISCR Case No. 08-08440 at 2 (App. Bd. Sep. 11, 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 factors. Decision at 4-5. 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 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). Accordingly, the Judge’s adverse decision is sustainable.

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: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Sgined: James E. Moody James E. Moody Administrative Judge Member, Appeal Board