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ISCR Case 09-03480.a1 — CASE

ISCR Case 09-03480.a1denied

Case Headnote

ISCR Case No. 09-03480.a1

Jun 2, 2011· Hon. Jeffrey D. Billett· appeal

Summary

A U.S. citizen, originally from Vietnam, was denied a security clearance under Guideline F, Financial Considerations, due to six outstanding debts totaling $45,863. The disqualifying condition cited was AG ¶ 20(a).

While the applicant presented some mitigating evidence, the judge determined it was insufficient to resolve the security concerns. Specifically, the applicant's unpaid taxes and student loans were not adequately addressed. The judge applied mitigating conditions AG ¶ 20(c) and AG ¶ 20(d) but ultimately found the applicant's actions did not sufficiently mitigate the financial concerns.

The denial was upheld because the applicant failed to demonstrate that the judge's decision was arbitrary or contrary to law, and the judge reasonably explained why the presented actions were insufficient to mitigate the security risks.

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedFinancial Considerations

Mitigating

AG ¶ 20(c)rejectedFinancial ConsiderationsThe judge found that the applicant's efforts to settle his debts were insufficient to mitigate the security concerns.
AG ¶ 20(d)rejectedFinancial ConsiderationsThe judge determined that the presence of some mitigating evidence did not outweigh the unfavorable evidence.

Key Rule Quoted

“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 that the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law.”
— ISCR Case No. 08-11983 at 2 (App. Bd. Jan. 28, 2011)

Procedural Posture

SOR issuedApr 26, 2010
Answer filed—
Hearing heldApr 6, 2011
Decision dateJun 2, 2011

Cite For

Denial of Security Clearance Based on Financial Considerations Under Guideline F
Insufficient Mitigation of Debts Leading to Adverse Decision
Weighing of Evidence by the Judge Is Not Arbitrary or Capricious

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 under Guideline F. The applicant argued that the Judge's decision was arbitrary and did not adequately weigh the evidence presented. The Board affirmed the Judge's decision, finding no harmful error in the weighing of evidence and that the Judge's conclusions were reasonable and supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRobert J. Tuider — denied the clearance

Decided ona hearing

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 that the Judge reasonably explained his conclusion that Applicant failed to mitigate the security concerns, and the decision was not arbitrary, capricious, or contrary to law.

Standard of review applied

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

Appeal Board panel

Jeffrey D. Billett
Jean E. Smallin
William S. Fields

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 that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Judge reasonably explained his conclusion that Applicant had failed to mitigate the security concerns in his case. Adverse decision affirmed. CASE NO: 09-03480.a1 DATE: 06/02/2011 DATE: June 2, 2011 In Re: ------------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-03480

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 April 26, 2010, 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 6, 2011, after the hearing, Administrative Judge Robert J. Tuider denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. 1 Applicant also related some steps he has taken since the close of the record. The Board cannot consider information that was not part of the record below. See Directive ¶ E3.1.29. Applicant raised the following issue on appeal: whether the Judge’s security clearance decision is arbitrary, capricious, or contrary to law. Consistent with the following discussion, the Board affirms the Judge’s decision denying Applicant a security clearance. The Judge made the following relevant factual findings: Applicant immigrated to the United States from Vietnam after high school and earned an engineering degree in the United States thereafter. Applicant became a U.S. citizen in 1984. Applicant has been separated from his wife since 2003 and has a son in college. Applicant’s SOR alleges six debts totaling $45,863. Two of the debts represent unpaid income tax owed to two states. One is unpaid federal income tax, which Applicant arranged to pay off by automatic deductions from his checking account. Another is unpaid student loans owed to the Department of Education (DOE). DOE initiated a garnishment action to collect that debt from Applicant’s pay. The last two are credit card debts. In his appeal brief, Applicant repeated the steps he has taken to settle the above debts, including some steps taken while the record was held open after the hearing.1 Applicant argues that the Judge did not give adequate weight to the evidence he presented in mitigation. Applicant has not demonstrated error on the part of the Judge, since the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance determination. 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. 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 that 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. 08-11983 at 2 (App. Bd. Jan. 28, 2011). In this case, the Judge found in Applicant’s favor with regard to his federal income tax debt and noted Applicant’s efforts to settle his other debt. The Judge discussed the possible application of the relevant mitigating conditions. Decision at 6-8. The Judge reasonably explained why Applicant’s actions were insufficient to satisfy 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 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)). Therefore, the Judge’s adverse decision under Guideline F is sustainable on this record. See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

ORDER

The Judge’s decision denying Applicant a security clearance is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board