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ISCR Case 09-04748.a1 — CASE

ISCR Case 09-04748.a1denied

Case Headnote

ISCR Case No. 09-04748.a1

Nov 12, 2010· Hon. Jean E. Smallin· appeal

Summary

The applicant, a married individual with children, was denied a security clearance due to concerns under Guideline F (Financial Considerations) and Guideline J (Criminal Conduct). These concerns stemmed from past criminal charges related to insufficient funds and the failure to repay unemployment benefits.

The applicant admitted to the allegations concerning both criminal conduct and financial issues. While the applicant claimed improved financial circumstances and a work promotion, the appeal board determined there was insufficient evidence to support these claims or to mitigate the security concerns.

Ultimately, the board found that the applicant failed to provide adequate evidence to resolve the issues raised under the applicable guidelines, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

JraisedCriminal Conduct
FraisedFinancial Considerations

Key Rule Quoted

“The application of disqualifying and mitigating conditions and whole-person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case.”
— ISCR Case No. 07-18303 at 2-3 (App. Bd. Nov. 13, 2008)

Procedural Posture

SOR issuedJan 13, 2010
Answer filed—
Hearing heldAug 24, 2010
Decision dateNov 12, 2010

Cite For

Security Concerns Under Guideline J (criminal Conduct) and Guideline F (financial Considerations)
Insufficient Evidence to Mitigate Security Concerns Despite Claims of Improved Circumstances
The Burden of Proof Shifts to the Applicant After Admitting Allegations.

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 filed by the applicant after the Administrative Judge denied her request for a security clearance based on concerns under Guideline J (Criminal Conduct) and Guideline F (Financial Considerations). The applicant argued that the Judge's decision was arbitrary and did not adequately consider her mitigating evidence. The Board affirmed the Judge's decision, finding no harmful error in the ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMatthew E. Malone — denied the clearance

Decided ona hearing

Guidelines belowGuideline JGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the applicant did not present sufficient evidence to mitigate the security concerns raised.

Standard of review applied

No new evidence on appealSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decision

Appeal Board panel

Michael D. Hipple
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 J; Guideline F DIGEST: Applicant submitted new evidence which the Board cannot consider. Adverse decision affirmed CASENO: 09-04748.a1 DATE: 11/12/2010 DATE: November 12, 2010 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-04748

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 January 13, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline J (Criminal Conduct) and Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On August 24, 2010, after the hearing, Administrative Judge Matthew E. Malone denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. Specifically, Applicant argues that the Judge should have found her criminal conduct and financial situation to be mitigated. Consistent with the following discussion, we affirm the Judge’s decision. The Judge made the following relevant factual findings: Applicant is married and has children aged 21 and 19. She is also raising her friend’s children because the friend is unable to care for them. Those children are ages 12 and 13. Applicant has also helped support her mother. Applicant and her husband do not share their financial resources. At times, Applicant has experienced financial difficulties, having one car repossessed and paying several unpaid bills by involuntary wage garnishment. In 1992, Applicant was charged with two counts of issuing checks with insufficient funds. In February 2007, Applicant was charged with three counts of negotiating worthless checks. Although Applicant knew when she wrote the checks that she did not have funds in her account to cover them, she was not prosecuted after she made restitution. Applicant is able to cover her current expenses, but with very little left over. Applicant was laid off in August 2003 and began receiving unemployment benefits. Applicant did not notify the state when she obtained another job, accruing a debt of $1,693 to the state for eight weeks of benefits. The state notified Applicant that she was required to repay that amount, but she did not do so. When Applicant went to the courthouse in February 2007 to answer for the worthless check charges, she was arrested and charged with second degree theft of property, a felony, for receiving and not repaying the unemployment benefits. Applicant pleaded guilty and was sentenced to three years in jail, which was suspended. Applicant was placed on probation for two years and ordered to repay the unemployment benefits. Fines and costs raised the amount owed to $3,175, which Applicant agreed to pay at $20 per month. In March 2009, Applicant’s probation was extended until 2012 because she had paid only four or five of the court-ordered payments. As of May 19, 2010, Applicant still owed $2,142 of the debt. In November 2008, Applicant violated her probation when she was arrested for domestic violence assault when she got into a fight at a friend’s house and hit the friend in the head with a shower rod. Applicant was not prosecuted because the fight was determined to be mutual, but she spent ten days in jail due to a probation violation. Applicant’s supervisor recently promoted her. She is known to be enthusiastic, reliable, dedicated, and willing to help others; and she is active in community volunteer projects and charitable fund-raising activities. Applicant maintains that she has improved her financial situation since she obtained her current job and has paid off a significant portion of her court-ordered debt, including $622 paid after the hearing. She also submitted additional information about her job performance. The job-related information and the amount paid after the hearing constitute new evidence, which the Board cannot consider. See Directive ¶ E3.1.29.

Applicant argues that she has mitigated any security concerns that might exist under Guideline J and Guideline F and that the Judge either did not consider or did not give adequate weight to her evidence of mitigation. There is a rebuttable presumption that the Judge considered all the record evidence, unless the Judge specifically states otherwise; and there is no requirement that the Judge mention or discuss every piece of record evidence when reaching a decision. See, e.g., ISCR Case No. 04-08134 at 3 (App. Bd. May 16, 2005). Applicant admitted the SOR allegations against her. The burden then shifted to Applicant to extenuate or mitigate the security concerns raised by those allegations. Directive ¶ E3.1.15. The Judge concluded that Applicant did not present evidence sufficient to overcome the security concerns raised. The application of disqualifying and mitigating conditions and whole-person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance determination. 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 that the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 07-18303 at 2-3 (App. Bd. Nov. 13, 2008).

ORDER

The Judge’s decision denying Applicant a security clearance is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, 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