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ISCR Case 09-04036.a1 — CASE

ISCR Case 09-04036.a1denied

Case Headnote

ISCR Case No. 09-04036.a1

Dec 8, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance primarily due to financial concerns under Guideline F (Financial Considerations). The judge found that the applicant failed to provide sufficient evidence of debt mitigation, specifically regarding a significant debt of $10,083. Despite the applicant's claims of a repayment plan, no adequate proof was presented to substantiate these assertions.

The judge determined that promises to pay were not a substitute for a consistent record of timely action. The applicant's financial problems were deemed ongoing, and he did not meet the burden of persuasion to demonstrate that these issues had been resolved or were under control.

The denial was affirmed on appeal, which underscored the applicant's responsibility to provide timely remedial action. While Guideline E (Personal Conduct) and Guideline G (Alcohol Consumption) were also raised, the denial ultimately rested on the unresolved financial issues.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe applicant's efforts to mitigate were insufficient to overcome the government's security concerns.
AG ¶ 22appliedAlcohol Consumption
AG ¶ 23appliedPersonal Conduct

Key Rule Quoted

“Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.”

Procedural Posture

SOR issuedFeb 2, 2010
Answer filed—
Hearing heldJul 20, 2010Record held open until August 5, 2010 for additional documentation.
Decision dateDec 8, 2010

Cite For

Burden of Persuasion in Financial Mitigation Under Guideline F
Expectation of Documentation for Debt Satisfaction
Insufficient Evidence of Timely Remedial Action in Financial Cases

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 was brought by an applicant whose request for a security clearance was denied by an Administrative Judge based on security concerns under Guidelines F, G, and E. The applicant argued that the Judge's decision was arbitrary and capricious, particularly regarding a specific debt. The Board affirmed the Judge's decision, finding that the applicant did not meet the burden of proof for mitigation and that the Judge's rationale was reasonable and supported by the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowNoreen A. Lynch — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline FGuideline GGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge’s adverse decision should be reversed because the Judge erred in finding against him with respect to the debt alleged in SOR paragraph 1.b.

Why the Board ruled this way

The Board concluded 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. The Judge's unfavorable security clearance decision under Guideline F is sustainable.

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
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; Guideline G; Guideline E DIGEST: Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. It is reasonable for a judge to expect applicants to present documentation abot the satisfaction of specific debts. Adverse decision affirmed. CASENO: 09-04036.a1 DATE: 12/08/2010 DATE: December 8, 2010 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-04036

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 February 2, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations), Guideline G (Alcohol Consumption) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 30, 2010, after the hearing, Administrative Judge Noreen A. Lynch denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse decision is arbitrary, capricious or contrary to law. Applicant contends that the Judge’s adverse decision should be reversed because the Judge erred in finding against him with respect to the debt alleged in SOR paragraph 1.b. Applicant argues that the evidence he presented at the hearing establishes that the debt was “in the process of being paid” but that he had not yet received written confirmation to that effect. Attached to his brief, he submits new evidence in the form of documents which delineate the terms of his repayment plan as to that debt and establish that he has made the first payment in accordance with that plan. The Board cannot consider this new evidence on appeal. See Directive ¶ E3.1.29. Applicant’s remaining argument does not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. The hearing was held on July 20, 2010. At Applicant’s request, the Judge held the record open until August 5, 2010 for the submission of additional documentation. Prior to the close of the record, Applicant submitted additional documentation relating to other debts alleged in the SOR, but nothing with respect to the $10,083 debt alleged in SOR paragraph 1.b. Decision at 1-2. The documentation relating to that debt which was submitted with Applicant’s appeal brief is dated August 26, 2010—a date well after the close of the record in the case. In her decision, the Judge noted that Applicant was arranging for a 36-month payment plan that would begin in September 2010 with respect to the debt alleged in SOR paragraph 1.band had already had his federal tax refund applied to the account in February 2010. Decision at 3. However, she found against him as to that debt because with respect to it and the much larger $21,405 debt alleged in SOR paragraph 1.a “. . . he has not started the actual payments. He did not present evidence that he and the creditors agreed on a specific payment plan. His efforts are insufficient to carry his burden in this case.” Decision at 7. The Judge’s rationale in that regard is sustainable. Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. Promises to pay a debt are not a substitute for a consistent record of timely remedial action. See, e.g., ISCR Case No. 02-31872 at 4 (App. Bd. May 24, 2005. Also, it is reasonable for a Judge to expect applicants to present documentation about the satisfaction of specific debts. See, e.g., ISCR Case No. 06-17520 at 2 (App. Bd. Sep. 20, 2007). Based on the record that was before her, it was not unreasonable for the Judge to conclude that Applicant’s financial problems were still ongoing and that he had not met his burden of persuasion as to mitigation. See, e.g., ISCR Case No. 05-07747 at 2 (App. Bd. Jul. 3, 2007). The Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. She found in favor of Applicant under Guidelines G and E, and as to five of the SOR factual allegations under Guideline F. However, she reasonably explained why the mitigating evidence was insufficient to overcome 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 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 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). Therefore, the Judge’s unfavorable security clearance decision under Guideline F is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board