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ISCR Case 09-05556.a1 — CASE

ISCR Case 09-05556.a1denied

Case Headnote

ISCR Case No. 09-05556.a1

Jun 23, 2011· Hon. Jean E. Smallin· appeal

Summary

A program manager for a government contractor was denied a security clearance under Guideline F, Financial Considerations. The denial stemmed from significant financial delinquencies totaling $108,835, which the applicant admitted to across thirteen separate debts.

Despite continuous employment since 2009, the applicant did not provide evidence of a strategy to resolve these financial issues. The judge concluded that the applicant failed to demonstrate control over his debts, leading to the determination that his financial problems posed a security concern.

Consequently, the security clearance was DENIED.

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedFinancial Considerations

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 issuedOct 29, 2010
Answer filed—Applicant requested a decision on the written record.
Hearing heldMar 9, 2011
Decision dateJun 23, 2011

Cite For

Denial of Security Clearance Due to Unresolved Financial Delinquencies
Importance of Demonstrating Control Over Financial Issues
Impact of Financial Considerations on National Security Determinations

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 due to financial considerations under Guideline F. The applicant argued that the Judge failed to consider all evidence and misapplied mitigating conditions. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoan Caton Anthony — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge ignored or did not properly weigh record evidence favorable to him.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argued that the Judge erred in her application of the mitigating conditions.

Why the Board ruled this way

The Board found that the Judge considered all relevant evidence and did not mis-weigh the evidence. The adverse decision was affirmed as sustainable on the record.

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

Jean E. Smallin
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: Applicant failed to rebut the presumption that the Judge considered all of the record evidence. Applicant did not demonstrate that the Judge mis-weighed the evidence. Adverse decision affirmed. CASE NO: 09-05556.a1 DATE: 06/23/2011 DATE: June 23, 2011 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-05556

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 October 29, 2010, 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 decision on the written record. On March 9, 2011, after considering the record, Administrative Judge Joan Caton Anthony 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 all of the record evidence and whether the Judge erred in her application of the mitigating conditions.

FOOTNOTES

1 This total amount of debt is found in the Analysis rather than the Findings section. Decision at 5.

2 See Item 3, Reply to SOR, at 5: “[M]yinability to pay off the relatively small remaining bills is due to my focus on resolving this mortgage issue once and for all . . .”

3 See Decision at 7: Applicant “has been steadily employed at his present position since about April 2009. In a May 2009 interview with an OPM investigator, he stated he would take action to pay or otherwise satisfy his delinquent debts. However, his 13 delinquent debts remain unaddressed. Despite nearly two years of steady employment, Applicant has failed to satisfy his delinquent debts, several of which are for relatively small amounts of money.” Consistent with the following, we affirm the decision of the Judge. The Judge made the following pertinent findings of fact: Applicant is a program manager for a Government contractor. Divorced, he is the father of three adult sons. He first received a security clearance in 1980. In 2000, Applicant and his wife were laid off from their jobs. They fell behind on their mortgage payments and utility bills. They filed for Chapter 13 bankruptcy protection in 2002, but this action was dismissed in 2004. The couple filed again for Chapter 13 bankruptcy later in 2004. In March 2009, the trustee in bankruptcy filed a certificate of default, stating that Applicant was over $17,000 in arrears in monthly payments. The bankruptcy action was dismissed in June 2009. Applicant has thirteen delinquent debts listed in the SOR, and he has admitted all of them in his Reply to the SOR. These delinquent debts total $108,835.1 In his Response to the File of Relevant Material (FORM) he promised to “persevere and resolve his financial delinquencies at some unspecified time in the future.” Decision at 3. Applicant attributed his financial problems to unemployment, medical expenses, divorce, college expenses, his mother’s medical problems, and repairs to his house. “He failed to specify how these events impacted his ability to satisfy his financial obligations.” Decision at 3. He also failed to provide documentary evidence that he had paid or settled any of the SOR debts or that he had established payment plans for them. In the Analysis portion of the Decision, the Judge noted that a number of Applicant’s delinquent debts were for amounts less than $250. Applicant stated to an OPM interviewer in 2009 that he intended to pay his delinquent debts, but the debts remain unresolved nearly two years later. The Judge stated that Applicant had failed to demonstrate that his problems are resolved or otherwise under control. She also stated that he did not demonstrate a strategy for debt resolution. Applicant contends that the Judge ignored, or did not properly weigh, record evidence favorable to him. He states that he had devoted most of his efforts to resolving his mortgage problems and, as a consequence, had not devoted much attention to his smaller debts. He believes that this effort to address his larger debt demonstrates his serious intent to resolve his financial problems.2 However, as the Judge noted in her Analysis, several of Applicant’s debts were for amounts under $100. He had failed to resolve them, despite having the apparent ability to have done so.3 Her conclusion that Applicant had failed to demonstrate mitigation is sustainable on this record. Applicant’s brief is not sufficient to rebut the presumption that the Judge considered all of the evidence in formulating her decision. 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. 09- 01735 at 2 (App. Bd. Aug. 31, 2010). The record supports a conclusion 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. “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). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Order The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin 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