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ISCR Case 09-03760.a2 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date9/21/2010
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionsSee the hearing decision (Case 09-03760.h2) →See the appeal decision (Case 09-03760.a1) →See the hearing decision (Case 09-03760.h1) →
Participants
Judge: Michael Y. Ra'anan, James E. Moody, William S. Fields
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline FFinancial Considerations · For Applicant
- Guideline FFinancial Considerations · Against Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
Finding similar decisions…

ISCR Case 09-03760.a2denied

Case Headnote

ISCR Case No. 09-03760.a2

Sep 21, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

A supply technician and retired Army veteran was denied a security clearance under Guideline F, Financial Considerations, due to significant and unresolved financial issues. The applicant admitted to multiple delinquent debts, including a state income tax lien, and had a history of bankruptcies.

While some mitigating circumstances were considered, the judge determined that the applicant's financial problems were primarily his own responsibility. The applicant failed to demonstrate payment or provide sufficient mitigating factors for many of the outstanding debts.

Consequently, the judge concluded that the applicant had not adequately resolved the financial concerns, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedFinancial Considerations
AG ¶ 20(c)raisedFinancial Considerations

Mitigating

AG ¶ 20(d)rejectedFinancial ConsiderationsThe judge concluded that the applicant's financial problems were primarily his own responsibility.
AG ¶ 20(e)rejectedFinancial ConsiderationsThe applicant failed to demonstrate sufficient evidence of rehabilitation or good faith effort to repay debts.

Key Rule Quoted

“When an applicant admits the SOR allegations against him or the Government presents substantial evidence for the allegations, the burden shifts to the applicant to provide evidence in mitigation.”

Procedural Posture

SOR issuedNov 3, 2009
Answer filed—
Hearing heldMay 18, 2010
Decision dateSep 21, 2010

Cite For

Burden of Persuasion in Financial Cases Under Guideline F
Consideration of Mitigating Circumstances in Financial Issues
Impact of Personal Responsibility on Financial Security Clearance Decisions

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 based on financial considerations under Guideline F. The applicant argued that the Judge failed to consider evidence in his favor and misapplied the burden of persuasion. The Board affirmed the Judge's decision, finding that the applicant did not demonstrate harmful error in the Judge's findings or conclusions.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRobert Robinson — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant contended that the Judge failed to consider all of the record evidence.
No specific harmful error alleged — raised by the applicantRejected
Applicant argued that the Judge mis-weighed the record evidence.
No specific harmful error alleged — raised by the applicantRejected
Applicant claimed that the Judge mis-applied the burden of persuasion.
No specific harmful error alleged — raised by the applicantRejected
Applicant asserted that the Judge failed properly to apply the pertinent mitigating conditions.

Why the Board ruled this way

The Board found that the Judge did not err in his treatment of the burden of persuasion and that the adverse decision was supported by substantial evidence.

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

Michael Y. Ra’anan — Chair
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: When an applicant admits the SOR allegations against him or the Government presents substantial evidence for the allegations, the burden shifts to the applicant to provide evidence in mitigation. Accordingly, the Judge did not err in his treatment of the burden of persuasion. Adverse decision affirmed. CASE NO: 09-03760.a2 DATE: 09/21/2010 DATE: September 21, 2010 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-03760

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Barry W. Rorex, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On November 3, 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 May 18, 2010, after the hearing, Administrative Judge Robert Robinson

FOOTNOTES

1 The Judge found that Applicant had another tax lien, for $1,588, which was not alleged in the SOR. This evidence was relevant to an understanding of, among other things, the nature, extent, and seriousness of Applicant’s financial problems; the circumstances underlying those problems; the frequency and recency of those problems, and the presence of rehabilitation. See Directive, Enclosure 2 ¶ 2(a). Gales denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. By decision dated July 16, 2010, we remanded the case to the Judge for him to reconstruct evidence missing from the file. On August 16, 2010, the Judge issued a remand decision that incorporated his previous decision. Applicant raised the following issues on appeal: whether the Judge failed to consider all of the record evidence; whether the Judge mis-weighed the record evidence; whether the Judge mis- applied the burden of persuasion; and whether the Judge failed properly to apply the pertinent mitigating conditions. Consistent with the following discussion, we affirm the decision of the Judge. The Judge made the following pertinent findings of fact: Applicant is a supply technician for a Defense contractor. He served in the U.S. Army for twenty years. Following his retirement, he held a number of jobs and also experienced periods of unemployment. Applicant and his wife filed for Chapter 13 bankruptcy, which was subsequently converted to Chapter 7. Applicant was discharged in bankruptcy in 1997. In 2000, they filed again for Chapter 13 bankruptcy protection. The petition was eventually dismissed. In April, 2010, Applicant and his wife again filed for Chapter 13 bankruptcy protection. Applicant had numerous delinquent debts alleged in his SOR, for such things as a state income tax lien, credit cards, etc.1 Although the Judge found in his favor regarding some of the alleged debts, for others he concluded that Applicant had failed to demonstrate payment or any mitigating factor. The Judge gave him credit for circumstances beyond his control that affected his financial situation, such as his periods of unemployment, family health problems, and loss of a granddaughter. However, the Judge concluded that Applicant’s financial problems were primarily his own responsibility. He noted that, during 2007 and 2008, Applicant received a substantial salary, virtually tax free, while working in a war zone, and that he has received a pension since his retirement from the Army. The Judge concluded that these emoluments should have permitted greater efforts at debt reduction than Applicant demonstrated in his case for mitigation. Applicant contends that the Judge failed to consider record evidence favorable to him. For example, he contends that the official who performed Applicant’s personal interview found Applicant to be free of security concerns. He quotes the official as follows: “There is nothing in the subject’s background or lifestyle . . . that leaves him susceptible to blackmail or coercion.” Summary of Interview, contained in Government Exhibit 2, Interrogatories, dated June 8, 2009. However, the quoted language is merely the interviewer’s summary of Applicant’s answers during the interview. These words do not constitute an opinion by the interviewer concerning Applicant’s eligibility for a security clearance.

2 See Note 1 above. Applicant also argues that the Judge failed to consider evidence that necessary expenses such as transportation costs diminished the amount of disposable income available to Applicant for debt repayment. Moreover, he argues that the Judge failed properly to weigh the record evidence, for example, his efforts to pay off his debts, the age of his debts, and the effect of unemployment on his financial situation. However, a Judge is presumed to have considered all of the record evidence. See, e.g., ISCR Case No. 08-11645 at 3 (App. Bd. Jun. 8, 2010). Applicant’s presentation on appeal is not sufficient to demonstrate that the Judge failed to consider the entire record. Neither is it sufficient to demonstrate that he weighed the evidence in an arbitrary or capricious manner. See, e.g., ISCR Case No. 06-21819 at 2 (App. Bd. Aug. 13, 2009). Applicant notes the Judge’s statements to the effect that Applicant had not corroborated his claims to have paid off his tax liens.2 “Applicant believes that this incorrectly places the burden on him to prove the debt has been paid rather than on the government to prove that it has not been paid.” Applicant Brief at 6. However, once an applicant admits the SOR allegations against him, or the Government produces substantial evidence of controverted allegations, the burden shifts to Applicant to present evidence “to rebut, explain, extenuate, or mitigate” the security concerns raised by the admissions and/or evidence. See Directive ¶ E3.1.15. In this case Applicant admitted the one tax lien alleged in the SOR. Furthermore, the Government, in its case-in-chief, presented substantial evidence of Guideline F security concerns. Accordingly, Applicant bore the burden of persuasion as to mitigation. The Judge properly evaluated Applicant’s case in light of that burden of persuasion. The challenged statements are not erroneous. After reviewing the record, we conclude 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). 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board