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ISCR Case 09-06602.a1 — CASE

ISCR Case 09-06602.a1denied

Case Headnote

ISCR Case No. 09-06602.a1

Jan 28, 2011· Hon. Jeffrey D. Billett· appeal

Summary

A 51-year-old college student was denied a security clearance under Guideline F, Financial Considerations, due to four delinquent debts totaling approximately $40,000. The disqualifying condition raised was AG ¶ 20(a), indicating a history of not meeting financial obligations.

While mitigating conditions AG ¶ 20(c) and AG ¶ 20(d) were considered, the judge found insufficient evidence to mitigate the financial concerns. The applicant's only stated plan for resolving the debts was to pay them when his income improved, which was deemed inadequate.

Consequently, the judge determined that the applicant failed to demonstrate sufficient mitigation under Guideline F, leading to the denial of the security clearance. This adverse decision was subsequently affirmed on appeal.

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedFinancial Considerations

Mitigating

AG ¶ 20(c)rejectedFinancial ConsiderationsThe applicant's claim of initiating a good faith effort to pay debts was not sufficient to mitigate the concerns.
AG ¶ 20(d)rejectedFinancial ConsiderationsThe applicant's plan to pay debts when income improves was deemed inadequate.

Key Rule Quoted

“A judge cannot promise someone a favorable security clearance adjudication, especially, when, as here, she has not yet reviewed all the record evidence.”

Procedural Posture

SOR issuedMay 11, 2010
Answer filed—
Hearing heldNov 8, 2010
Decision dateJan 28, 2011

Cite For

Insufficient Mitigation of Financial Concerns Under Guideline F
The Presumption That a Judge Considers All Evidence in the Record
The Prohibition Against Judges Promising Favorable Outcomes in Security Clearance Cases

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 under Guideline F. The applicant argued that the Judge did not consider all evidence and violated an agreement regarding the outcome. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMary E. Henry — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge failed to consider his statement regarding his good faith effort to pay his debts.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge violated an agreement regarding the outcome of his security clearance.

Why the Board ruled this way

The Board affirmed the Judge's decision, finding that the Judge had sufficient evidence to deny the security clearance and that the Applicant's claims did not demonstrate harmful error.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
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: A judge cannot promise someone a favorable security clearance adjudication, especially, when, as here, she has not yet reviewed all the record evidence. Adverse decision affirmed. CASENO: 09-06602.a1 DATE: 01/28/2011 DATE: January 28, 2011 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-06602

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 May 11, 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 hearing. On November 8, 2010, after the hearing, Administrative Judge Mary E. Henry 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 considered all the record evidence and whether the Judge violated an agreement between her and Applicant. Consistent with the following discussion, we affirm the Judge’s decision. The Judge noted that Applicant, age 51, is attending college. The Judge found for Applicant on three debts alleged in the SOR but also found Applicant has four delinquent debts totaling approximately $40,000. The judge found that Applicant’s only plan is to pay these debts when his income improves. The Judge concluded that Applicant had not mitigated the security concerns arising from this finances under Guideline F Applicant contends that the Judge failed to consider his statement that he initiated a good faith effort at paying his debts by taking classes in pursuit of his bachelor’s degree. A Judge is presumed to have considered all the evidence in the record. See, e.g., ISCR Case 09-01735 at 2 (App. Bd. Aug. 31, 2010). There is nothing in Applicant’s presentation on appeal or in the Decision to rebut the presumption that the Judge considered all of the evidence. Applicant points to an exchange he had with the Judge at the Hearing. Applicant said: “Rather than face an adverse decision in this matter, I am willing to submit to remedial measures the honorable judge might deem necessary.” (Transcript, p. 55) In short order she said to him “I’m going to ask for a few things from you . . . I’ve got several things I want . . .” (Transcript, p. 56) The Judge proceeded to request five types of documentary evidence from Applicant. Applicant contends that this constituted an agreement between him and the Judge that if he provided the items requested she would not deny him a security clearance. Applicant’s reading of the text is not wholly implausible. However, it is not the only plausible reading. The Board is not inclined to adopt a reading which would be plain error. A judge cannot promise someone a favorable security clearance adjudication, especially, when, as here, she has not yet reviewed all the record evidence. The Board acknowledges that the other reading of the transcript is also potentially problematic. Even if they did not have an agreement, the Judge risked compromising her impartiality by advising Applicant what evidence to produce. However, for that reading Applicant (the appealing party here) would not be the aggrieved party and there is no cross-appeal. Therefore, the Board need not resolve any questions raised by the alternative reading. 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: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board