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ISCR Case 09-06540.a1 — CASE

ISCR Case 09-06540.a1denied

Case Headnote

ISCR Case No. 09-06540.a1

Nov 19, 2010· Hon. Jean E. Smallin· appeal

Summary

An applicant, representing herself, was denied a security clearance under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial was based on significant financial concerns and issues related to personal conduct.

The applicant admitted to most allegations under Guideline F, which included disqualifying conditions as outlined in AG ¶ 19. The judge determined that the applicant failed to provide sufficient mitigating evidence, despite the presence of some mitigating conditions under AG ¶ 20. A key factor in the denial was the judge's finding that the applicant did not adequately disclose her financial obligations on her security clearance application.

The applicant appealed the decision, arguing that the judge did not adequately consider her evidence of mitigation. However, the appeal board affirmed the denial, concluding that the judge's decision was not arbitrary or capricious.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20rejectedFinancial ConsiderationsThe applicant did not present sufficient evidence to mitigate the security concerns.

Key Rule Quoted

“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 in arbitrary or capricious manner.”
— ISCR Case No. 07-18303 at 2-3 (App. Bd. Nov. 13, 2008)

Procedural Posture

SOR issuedApr 1, 2010
Answer filed—
Hearing heldAug 31, 2010
Decision dateNov 19, 2010

Cite For

Affirmation of Denial Based on Financial Considerations Under Guideline F
Insufficient Evidence of Mitigation in Financial Matters
Disagreement with Judge's Evidence Weighing Does Not Constitute Arbitrary Decision-making

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 based on financial considerations and personal conduct. The applicant argued that the Judge did not adequately consider her evidence of mitigation. The Board affirmed the Judge's decision, finding no harmful error in the weighing of evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowArthur E. Marshall, Jr. — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline EGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge's decision denying her a security clearance is 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 Judge did not act in an arbitrary or capricious manner in weighing the evidence.

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

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 F; Guideline E DIGEST: 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 weighed the evidence in arbitrary or capricious manner. Adverse decision affirmed. CASENO: 09-06540.a1 DATE: 11/19/2010 DATE: November 19, 2010 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-06540

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 April 1, 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 31, 2010, after the hearing, Administrative Judge Arthur E. Marshall, Jr., 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 denying her a security clearance is arbitrary, capricious, or contrary to law. Specifically, Applicant contends that the Judge did not consider all the information she provided and did not give adequate weight to her evidence of mitigation. Consistent with the discussion below, we affirm the Judge’s decision. The Judge made the following relevant findings of fact: Applicant married in 2001, at about the same time that her parents began to experience health problems. Applicant began giving them large amounts of cash. In 2005, Applicant and her husband bought a house; soon thereafter, the value of the house declined, while the mortgage payments adjusted significantly upward. Faced with the higher mortgage payments, Applicant experienced difficulties in paying other bills. The SOR listed nine unpaid or delinquent judgments or other obligations, including the first and second mortgages on her home. Applicant admitted seven of the debts. Applicant testified that the first mortgage had been delinquent, but she provided documentation that it was current as of the time of the hearing. Applicant stated that she had been in contact with most of the other creditors and had paid some of the debts, but provided no documentation in that regard. Applicant failed to list her unsatisfied judgments and unpaid debts on her security clearance application. Applicant testified that she had completed a similar application before, but was unfamiliar with the electronic format. Applicant stated that she completed the application hurriedly and did not give proper attention to the financial questions, assuming that subject would be dealt with during the investigatory process. Applicant argues that the Judge’s decision is arbitrary, capricious, or contrary to law. Applicant maintains that she has mitigated any security concerns that might exist under Guideline F and that the Judge either did not consider or did not give adequate weight to her evidence of mitigation.1 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 most of the Guideline F 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

FOOTNOTES

1 The Judge found in Applicant’s favor as to the SOR allegations under Guideline E. The Judge’s conclusions as to Guideline E are not in issue. The Judge also found in Applicant’s favor as to one of the debts under Guideline F.