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ISCR Case 09-05854.a1 — CASE

ISCR Case 09-05854.a1denied

Case Headnote

ISCR Case No. 09-05854.a1

Nov 8, 2010· Hon. Jean E. Smallin· appeal

Summary

A defense contractor employee and member of the Coast Guard Auxiliary was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The applicant had acquired new delinquent debts following a bankruptcy filing, and critically, deliberately omitted information about his financial status from his security clearance application.

While the applicant presented evidence of good character and some debt repayment, the judge determined these actions were insufficient to mitigate the security risks. Specifically, the new delinquent debts and the intentional omissions on the application raised significant concerns.

Ultimately, the judge found that the disqualifying conditions under AG ¶ 20(a) and AG ¶ 15 were not adequately mitigated by the conditions presented under AG ¶ 20(c) and AG ¶ 15. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

Mitigating

AG ¶ 20(c)rejectedFinancial ConsiderationsThe applicant did not demonstrate responsible action regarding his debts.
AG ¶ 15rejectedPersonal ConductThe applicant did not attempt to correct the omissions in his application.

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 issuedMar 8, 2010
Answer filed—
Hearing heldAug 16, 2010
Decision dateNov 8, 2010

Cite For

Deliberate Omissions in Security Clearance Applications Under Guideline E
New Delinquent Debts Acquired Post-bankruptcy Under Guideline F
Insufficient Evidence to Mitigate Financial Concerns Despite Claims of Good Character

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 and personal conduct issues. The applicant argued that the Judge mis-weighed evidence and misapplied mitigating conditions. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJennifer I. Goldstein — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge did not extend sufficient weight to record evidence of debt repayment and his good character.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant contended that the Judge erred in her application of the mitigating conditions.

Why the Board ruled this way

The Board affirmed the Judge's decision, finding that the Judge reasonably explained why the Applicant failed to meet his burden of persuasion regarding mitigation and that the Judge's findings were supported by substantial evidence.

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

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; Guideline E DIGEST: Applicant has acquired new delinquent debts since his bankruptcy. Applicant deliberately omitted information from his security clearance application. Adverse decision affirmed. CASENO: 09-05854.a1 DATE: 11/08/2010 DATE: November 8, 2010 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-05854

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Alan V. Edmunds, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On March 8, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On August 16, 2010, after the hearing, Administrative Judge Jennifer I. Goldstein 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 mis-weighed the record evidence and whether the Judge erred in her application of the mitigating conditions. Consistent with the following discussion, we affirm the decision of the Judge. The Judge made the following pertinent findings of fact: Applicant is an employee of a Defense contractor and a member of the Coast Guard Auxiliary. He has been divorced three times and, at the close of the record, was engaged to be married. In 1987 Applicant filed for Chapter 7 bankruptcy protection. The bankruptcy filing showed that Applicant owed federal taxes from 1983 and state taxes from 1984.1 Since that bankruptcy action, he has acquired delinquent debts: for example a lien for unpaid state taxes, a $5,018 judgment against him by a creditor who had provided Applicant’s business a surety bond, and a $7,500 debt for a surety bond from a different creditor. In addition to these debts, Applicant failed to file state income tax returns for tax years 1998, 1999, 2000, and 2001. Applicant’s security clearance application (SCA) inquired if, (1) within the previous 7 years, he had had a tax lien; (2) within the previous 7 years he had had any unsatisfied judgments; (3) within the previous 7 years he had had any debts more than 180 days delinquent; and (4) he were currently over 90 days delinquent on any debt. Applicant answered “no” to each question, which answers were false. The Judge found that Applicant had deliberately omitted the requested information from the SCA, given the clarity of the questions and Applicant’s prior experience with security investigations. Applicant enjoys a good reputation at his job for trustworthiness. He has demonstrated excellent duty performance and conduct. In the Analysis portion of her decision, the Judge discussed various circumstances affecting Applicant’s debts that were out of his control, such as periods of unemployment, divorces, and expenses incurred in caring for his dying father. She also noted that he had paid off certain SOR debts. However, for the remaining SOR debts, she reasonably explained why Applicant had failed to meet his burden of persuasion as to mitigation. She stated, for example, that he had not demonstrated responsible action in regard to those debts, that he had not made good-faith efforts to repay them, and that he had not demonstrated that his financial situation was under control. Regarding the Guideline E allegations of deliberate falsification, the Judge noted that Applicant had not attempted to correct the omissions and that he had not demonstrated that, in answering the questions as he did, he was reasonably relying upon advice from someone else. In support of his appeal, Applicant points to decisions by the Hearing Office, which he believes support his request for a favorable determination. The Board gives due consideration to these cases. However, each case must be decided upon its own merits. Directive, Enclosure 2 ¶ 2(b). Moreover, Hearing Office decisions are binding neither on other Hearing Office Judges nor on the Board. See ISCR Case No. 06-24121 at 2 (App. Bd. Feb. 5, 2008). The cases cited by Applicant have significant factual differences from his own. Only one of the cited cases involves Guideline E falsification concerns, and in that one the mitigating evidence is more substantial than in Applicant’s case. Applicant also contends that the Judge did not extend sufficient weight to record evidence of debt repayment and his good character. However, the Judge made findings concerning these matters and explicitly considered them in her decision. Applicant’s disagreement with her weighing of the evidence is not sufficient to demonstrate error. See, e.g., ISCR Case No. 06-21819 at 2 (App. Bd. Aug. 13, 2009). 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).

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

FOOTNOTES

1 Applicant was not able to state how much of his debt was discharged through this bankruptcy action. Tr. at 71.