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ISCR Case 09-04275.a1 — CASE

ISCR Case 09-04275.a1denied

Case Headnote

ISCR Case No. 09-04275.a1

deniedApr 18, 2011· Hon. Jean E. Smallin· appeal

Summary

This DOHA security clearance case involved an applicant seeking a trustworthiness designation under Guideline F (Financial Considerations), which was ultimately denied. The applicant, representing himself, faced significant financial issues, including 24 delinquent debts totaling nearly $64,000.

The appeal board upheld the denial, concluding that the applicant failed to demonstrate that the judge had mis-weighed the evidence. Disqualifying conditions under AG ¶ 20(a) were raised due to the applicant's lengthy history of not meeting financial obligations. While mitigating conditions under AG ¶ 20(d) were applied, they were deemed insufficient to overcome the serious financial concerns.

The denial was based on the applicant's ongoing financial problems, his failure to provide evidence of living within his means, and the absence of credit counseling to address his issues. The judge reasonably concluded that these financial problems persisted despite some mitigating evidence presented.

Why the Applicant Was Denied

The applicant had a lengthy history of not meeting financial obligations, including 24 delinquent debts totaling nearly $64,000.
The applicant did not provide evidence of living within his means or seeking credit counseling to address his financial issues.
The judge reasonably concluded that the applicant's financial problems were ongoing despite some mitigating evidence.

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedFinancial Considerations

Mitigating

AG ¶ 20(d)rejectedFinancial ConsiderationsThe judge found the mitigating evidence insufficient to overcome the government's trustworthiness concerns.

Key Rule Quoted

“The presence of some mitigating evidence does not alone compel the Judge to make a favorable trustworthiness decision.”

Procedural Posture

SOR issuedDec 23, 2009
Answer filed—
Hearing heldJan 31, 2011
Decision dateApr 18, 2011

Cite For

Evaluation of Financial Considerations Under Guideline F
Burden of Proof on Applicant to Establish Mitigation After Government Raises Trustworthiness Concerns
Insufficiency of Mitigating Evidence in the Presence of Serious Financial Issues

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

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 mis-weighed the record evidence. The presence of some mitigating evidence does not alone compel a favorable decision. Adverse decision affirmed. CASE NO: 09-04275.a1 DATE: 04/18/2011 DATE: April 18, 2011 In Re: ---------------- Applicant for Public Trust Position ) ) ) ) ) ) ) ) ADP Case No. 09-04275

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 trustworthiness designation. On December 23, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—trustworthiness 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 January 31, 2011, after the hearing, Administrative Judge John Grattan Metz, Jr. denied Applicant’s request for a trustworthiness designation. 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 trustworthiness decision is arbitrary, capricious, or contrary to law. Applicant contends that the Judge’s adverse decision should be reversed because the Judge mis-weighed the evidence. Specifically, he argues that the Judge’s decision focused almost exclusively on the government’s adverse evidence and did not give enough consideration to the mitigating evidence presented by Applicant. Applicant has not demonstrated that the Judge’s ultimate adverse decision is arbitrary, capricious, or contrary to law. A review of the decision indicates that the Judge reasonably considered evidence favorable to the Applicant including such things as: his history of serious medical problems; his favorable character and employment references; and his post-hearing resolution of several small debts. Decision at 2-4. A Judge is presumed to have considered all the evidence in the record. See, e.g., ADP Case No. 08-07882 at 2 (App. Bd. Apr. 16, 2010). There is nothing in the Applicant’s presentation on appeal or in the decision to rebut the presumption that the Judge fairly considered all of the evidence including evidence favorable to the Applicant.

Once the government presents evidence raising trustworthiness concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The presence of some mitigating evidence does not alone compel the Judge to make a favorable trustworthiness decision. 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 the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ADP Case No. 07-06039 at 4 (App. Bd. Jul. 8, 2008). In this case, the Judge found that Applicant had a lengthy history of not meeting financial obligations, which included 24 debts totaling nearly $64,000 that had fallen delinquent after Applicant had received a Chapter 7 discharge in bankruptcy in July 2000. Decision at 2. At the time the case was submitted for decision, Applicant still had significant outstanding debts, and was still trying to resolve his financial problems. He had submitted no budget or evidence that he was able to live within his means, and there was no evidence that he had sought credit counseling or had otherwise brought his financial problems under control. Decision at 4. In light of the foregoing, the Judge could reasonably conclude that Applicant’s financial problems were still ongoing. 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. He found in favor of Applicant with respect to four of the SOR factual allegations. However, he reasonably explained why the mitigating evidence was insufficient to overcome the government’s trustworthiness concerns. The Board does not review a case de novo. After reviewing the record, the Board concludes 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 unfavorable trustworthiness determination is sustainable.

ORDER

The decision of the Judge denying Applicant a trustworthiness designation is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board