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ISCR Case 09-03621.a1 — CASE

ISCR Case 09-03621.a1denied

Case Headnote

ISCR Case No. 09-03621.a1

Dec 3, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, represented by counsel, was denied a security clearance under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial was based on the applicant's extensive delinquent debts, which totaled over $70,000, and a dismissed Chapter 13 bankruptcy petition.

The bankruptcy petition was dismissed due to the applicant's failure to make required payments. Despite possessing significant discretionary income, the applicant did not demonstrate sufficient mitigation for these financial issues.

The appeal board affirmed the denial, concluding that the judge's findings were supported by substantial evidence. The disqualifying conditions cited were AG ¶ 20 and AG ¶ 15.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

Key Rule Quoted

“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)

Procedural Posture

SOR issuedNov 19, 2009
Answer filed—
Hearing heldAug 31, 2010
Decision dateDec 3, 2010

Cite For

Denial Based on Financial Considerations Under Guideline F
Denial Based on Personal Conduct Under Guideline E
Affirmation of Adverse Decisions Supported by Substantial Evidence

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 and personal conduct. The applicant argued that the Judge erred in findings related to a dismissed bankruptcy and mis-weighed evidence. The Board affirmed the Judge's decision, finding the challenged findings sustainable and the decision not arbitrary or capricious.

Appealed bythe applicant

Applicant representationAttorney

Judge belowPaul J. Mason — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contends that the Judge ignored or mis-weighed the record evidence.
Erroneous finding of fact — raised by the applicantRejected
Applicant claims the Judge erred in stating that the bankruptcy petition was dismissed due to failure to make payments.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argues that the Judge's adverse security clearance decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Judge's findings were supported by substantial evidence, and the decision was not arbitrary or capricious. The Board affirmed the Judge's decision based on the record evidence and the applicant's failure to demonstrate mitigation.

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

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; Guideline E DIGEST: The Judge’s challenged finding regarding Applicant’s dismissed bankruptcy is consistent with the record evidence and sustainable. Adverse decision affirmed. CASENO: 09-03621.a1 DATE: 12/03/2010 DATE: December 3, 2010 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-03621

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT D. Michael Lyles, Esq., Department Counsel FOR APPLICANT Alan V. Edmunds, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On November 19, 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 August 31, 2010, after the hearing, Administrative Judge Paul J. Mason 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 certain of the Judge’s findings of fact were supported by substantial record evidence; whether the Judge failed to consider all of the record evidence or mis-weighed the evidence; and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Consistent with the following discussion, we affirm the decision of the Judge. The Judge made the following pertinent findings of fact: Applicant has numerous delinquent debts for such things as credit cards, loans, and consumer goods. Many of the debts originated from his time in the U. S. Navy, from which he was discharged in 2003. Applicant filed for Chapter 13 bankruptcy in 2008, although the petition was subsequently dismissed. Applicant has a net monthly income of approximately $6,200, with $3,000 left over after expenses. Although Applicant had paid off some of the debts alleged in the SOR, he still owed over $70,000. The Judge concluded that Applicant had failed to demonstrate mitigation, in light of his dismissed bankruptcy petition and failure to pay off his debts, despite significant discretionary income. Applicant contends that the Judge erred in some of his findings. In particular, he claims that the Judge erred in stating that the bankruptcy petition was dismissed due to failure to make payments. Rather, he states that the evidence shows that the petition was dismissed because Applicant had an incompetent attorney. Applicant also contends that the Judge’s findings about particular debts contain errors. However, the Judge’s statement about the bankruptcy, found in the Analysis portion of his decision, is consistent with the record evidence. While the Judge considered Applicant’s testimony that his attorney was ineffective, the challenged statement is sustainable.1 The Judge’s material findings, considered as a whole, are supported by the record and are sustainable. See, e.g., ISCR Case No. 08-11735 at 3 (App. Bd. Sep. 21, 2010). Concerning Applicant’s contention that the Judge ignored or mis-weighed the record evidence, a Judge is presumed to have considered all the evidence in the record. See, e.g., ISCR Case No. 09-01735 at 2 (App. Bd. Aug. 31, 2010). Applicant’s apparent disagreement with the Judge’s weighing of the evidence is not sufficient to rebut the presumption that the Judge considered all of the evidence in making his decision. Neither is Applicant’s argument sufficient to demonstrate that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 09-01970 at 3 (App. Bd. Oct. 29, 2010). The record supports a conclusion 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,’” both as to the mitigating conditions and the whole-person factors. 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). Applicant contends that we should remand the case to the Judge to reopen the record and take in additional evidence. However, in light of our holding, we need not address this request.

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 Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board

FOOTNOTES

1 See Tr. at 22: “Q: The reason people fail in [Chapter 13 bankruptcy] . . . the monthly payment is too much. When it gets to be too much they can’t pay it. The court gets notified and the plan gets dismissed. Is that what happened? A: In the end, yes, sir.” See also the Summary of Applicant’s Clearance Interview, contained in Government Exhibit 2, Interrogatories: “In 3/09 he received notice from the court that the case was being dismissed. He is unclear as to the reason but thought it had something to do with his 2007 income tax return or pay stubs which had been submitted.” The Judge noted this evidence in his decision. Decision at 3-4.