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ISCR Case 09-02960.a1 — CASE

ISCR Case 09-02960.a1denied

Case Headnote

ISCR Case No. 09-02960.a1

Jul 30, 2010· Hon. Jeffrey D. Billett· appeal

Summary

This security clearance application was denied under Guideline F (Financial Considerations) due to a pattern of financial neglect. The applicant, representing himself, faced several delinquent debts, including a repossessed automobile and outstanding medical expenses. These issues arose following a period of unemployment and a divorce.

The judge identified Disqualifying Conditions F.2 and F.3, noting that the applicant's financial difficulties stemmed more from neglect than an inability to pay. While the applicant made some efforts to address his debts, these actions were deemed insufficient to mitigate the security concerns.

Although Mitigating Conditions F.1 and F.3 were considered, they were not enough to overcome the established pattern of financial irresponsibility. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts
F.2raisedDelinquent Debts

Mitigating

F.1rejectedThe Conditions That Resulted in the Financial Difficulties Were Largely Beyond the Person's ControlThe judge acknowledged the circumstances but concluded that the applicant had not been responsible regarding his debts.
F.3rejectedThe Individual Has Made Good Faith Efforts to Repay Overdue Creditors or Otherwise Resolve DebtsThe judge found the applicant's efforts insufficient to mitigate the security concerns.

Key Rule Quoted

“A Judge is presumed to have considered all the evidence in the record.”
— ISCR Case No. 07-00196 at 3 (App. Bd. Feb. 20, 2009)

Procedural Posture

SOR issuedSep 9, 2009
Answer filed—
Hearing heldApr 30, 2010
Decision dateJul 30, 2010

Cite For

Denial Based on Financial Neglect Under Guideline F
Insufficient Mitigation of Financial Issues Despite Some Efforts
Presumption That Judges Consider All Evidence Presented

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 based on financial considerations under Guideline F. The applicant argued that the judge failed to consider favorable evidence and misapplied mitigating conditions. The Board affirmed the judge's decision, finding no harmful error and that the judge's conclusions were supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowErin C. Hogan — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge failed to consider or mis-weighed evidence favorable to him.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argued that the Judge erred in her application of the Guideline F mitigating conditions.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge plausibly explained why the mitigating evidence was insufficient to overcome the government's security concerns, and that any error associated with the evidence presented by the Applicant was harmless.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Jeffrey D. Billett
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 DIGEST: The judge plausibly explained why the mitigating evidence was not sufficient to overcome the government’s security concerns. The document Applicant discusses reflects payment of a $34 debt which is unlikely to have changed the outcome of the case. Adverse decision affirmed. CASENO: 09-02960.a1 DATE: 07/30/2010 DATE: July 30, 2010 In Re: --------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-02960

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 The Judge held the record open after the hearing for the Applicant to submit additional evidence. clearance. On September 9, 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 hearing. On April 30, 2010, after the hearing, Administrative Judge Erin C. Hogan 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 failed to consider record evidence favorable to Applicant and whether the Judge erred in her application of the Guideline F mitigating conditions. For reasons set forth below, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: Applicant works for a Defense contractor. He has held a security clearance in the past, about 20 years ago, when working for another government agency. He has several delinquent debts, for such things as a repossessed automobile, medical expenses, and credit cards. His financial problems started during a period of unemployment in 2002. The problems were also affected by a divorce. Although his ex-wife was supposed to pay off some of the marital debts, she failed to do so, leaving Applicant to pay all the marital debts. Applicant has, in fact, paid off some of his debts, including several not alleged in the SOR. Prior to the hearing, Applicant attended a financial counseling session and, after the hearing, hired a credit counselor. Applicant enjoys a good reputation for the quality of his work performance and his character. In the Analysis portion of the Decision, the Judge acknowledged that Applicant’s debts were affected by circumstances outside his control and that he had taken a positive step by obtaining the services of a debt counselor. However, she also concluded that he had not been responsible in regard to his delinquent debts, noting that many of them were for amounts under $200. The Judge stated that this suggests “a pattern of financial neglect as opposed to being unable to pay.” Decision at 6. Applicant contends that the Judge either failed to consider, or mis-weighed, evidence favorable to him, such as his efforts to pay off his debts and financial sacrifices he has made in order to resolve his difficulties. He also cites to evidence that he had paid off one of the debts which the Judge found against him, asserting that he had faxed the evidence to the Judge but that she did not appear to have considered it. A Judge is presumed to have considered all the evidence in the record. See, e.g., ISCR Case No. 07-00196 at 3 (App. Bd. Feb. 20, 2009). The Judge discussed Applicant’s unemployment, his divorce, his efforts to pay his debts, and his having enlisted the services of a financial counselor. However, she plausibly explained why this evidence was not sufficient to overcome the Government’s Guideline F security concerns, noting Applicant’s own admission that he has not been knowledgeable about managing credit. Concerning the document that Applicant averred he had faxed to the Judge, it reflects payment of a $34.00 debt. Given that relatively small amount, the resolution of that debt is unlikely to have changed the outcome of the case. Therefore, any error associated with this document would be harmless. On the whole, Applicant’s presentation on appeal is not sufficient to rebut the presumption that the Judge considered the entire record. Neither is it sufficient to demonstrate that she weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. See ISCR Case No. 06-21819 at 2 (App. Bd. Aug. 13, 2009). 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 adverse decision is sustainable on this record. “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: Jeffrey D. Billett Jeffrey D. Billett 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