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ISCR 09-04094.a1: Guideline F security clearance appeal, denied (2010) · CASE

ISCR Case 09-04094.a1denied

Case headnote

ISCR Case No. 09-04094.a1

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

Summary

A former U.S. Navy service member was denied a security clearance under Guideline F, Financial Considerations, due to significant delinquent debts totaling approximately $72,000. The judge identified the applicant's financial difficulties as stemming from periods of unemployment and a pattern of living beyond his means.

Disqualifying conditions under AG ¶ 20(a) were raised, indicating a history of not meeting financial obligations. While mitigating conditions AG ¶ 20(c) and AG ¶ 20(d) were applied, they were insufficient to overcome the security concerns.

The denial was based on the substantial amount of delinquent debt and the applicant's failure to provide sufficient evidence of debt payments or negotiations to resolve these obligations. Ultimately, the judge concluded that the applicant did not demonstrate a responsible approach to managing his finances, leading to the denial of his security clearance.

Conditions referenced

Disqualifying

AG ¶ 20(a)raisedFinancial Considerations

Mitigating

AG ¶ 20(c)rejectedFinancial ConsiderationsThe applicant did not provide evidence of a viable plan to resolve his financial issues.
AG ¶ 20(d)rejectedFinancial ConsiderationsThe applicant's financial problems were not under control.

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 issuedJul 20, 2009
Answer filed—
Hearing heldJan 29, 2010
Decision dateJul 8, 2010

Cite for

Denial of Security Clearance Due to Significant Delinquent Debts Under Guideline F
Insufficient Evidence of Financial Responsibility
Rejection of Mitigating Conditions Related to Financial Considerations

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 due to significant delinquent debts. The applicant argued that the Administrative Judge failed to consider favorable evidence and mis-weighed the evidence regarding his financial situation. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJuan J. Rivera denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant argued that the Judge failed to consider record evidence favorable to him.
Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant contended that the Judge mis-weighed the evidence.
Mitigation wrongly applied / not applied, raised by the applicantRejected
Applicant claimed that the Judge erred in his application of the pertinent mitigating conditions.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision, affirming that the Judge properly considered the evidence and articulated a satisfactory explanation for the adverse decision.

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
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: Given Applicant’s history of delinquent debt and the paucity of evidence regarding attempts to resolve the debt, the case in mitigation was not persuasive. Adverse decision affirmed. CASENO: 09-04094.a1 DATE: 07/08/2010 DATE: July 8, 2010 In Re: -----

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-04094

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 July 20, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the The hearing in Applicant’s case was conducted on January 29, 2010. 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 10, 2010, after the hearing, Administrative Judge Juan J. Rivera 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; whether the Judge mis-weighed the evidence; and whether the Judge erred in his application of the pertinent mitigating conditions. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is employed by a Defense contractor. He served in the U.S. Navy from 1989 to 1996. While on active duty, he held a Top Secret security clearance. Applicant is married. He and his wife have no children. Applicant has significant delinquent debts, for such things as medical expenses, cell phone services, credit cards, and education loans. His debts total approximately $72,000. His financial problems were related to periods of unemployment following his discharge from the Navy and also to an employer having lost a Defense contract, resulting in Applicant having to accept follow-on work at a lower salary. He has hired a debt management service to assist him in resolving his financial difficulties. However, “[h]e presented no evidence of any prior financial counseling, participation in consumer debt consolidation programs, [or] that he was following a budget prior to February 2010.” Decision at 4. In the Analysis portion of the decision, the Judge stated: Applicant and his wife were living beyond their financial means . . . He presented little evidence of debt payments, contacts with creditors, or negotiations to resolve his SOR debts. Considering the evidence as a whole, his financial problems are not under control. Applicant receives credit for contracting the services of a debt management company . . . However, it is too soon to determine whether he has a viable plan to resolve his financial predicament or that he will be able to avoid similar financial problems in the future. Decision at 6. Applicant’s appeal raises the issue of whether the Judge either did not consider or did not properly weigh evidence favorable to him, for example his employment difficulties and his having held a Top Secret clearance while in the Navy. However, the record demonstrates that the Judge explicitly considered these matters, along with other favorable evidence, in his Analysis of Applicant’s case for mitigation. On the other hand, he plausibly explained his conclusion that Applicant’s financial problems originated in part from his having lived beyond his means. The Judge also concluded that Applicant had not demonstrated a responsible approach to his finances. The record evidence, viewed as a whole, supports this conclusion. Applicant has not rebutted the presumption that the Judge considered all of the record evidence. See, e.g., ISCR Case No. 07-00196 at 3 (App. Bd. Feb. 20, 2009). Neither has he demonstrated that the Judge weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-21819 at 2 (App. Bd. Aug. 13, 2009). 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.’” 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, in light of the standard announced in Department of the Navy v. Egan, 484 U.S. 518, 528 (1988): “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan 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