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ISCR Case 09-07456.a1 — CASE

ISCR Case 09-07456.a1denied

Case Headnote

ISCR Case No. 09-07456.a1

May 19, 2011· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant representing himself was denied a security clearance under Guideline F (Financial Considerations) due to unresolved financial issues. The Administrative Judge's decision to deny the clearance was affirmed by the Board, which found that the applicant had significant outstanding debts and had not made sufficient efforts to mitigate the associated security concerns.

Specifically, the applicant's financial problems were characterized by substantial unresolved debts. The Judge determined that the actions taken by the applicant to address these financial obligations were inadequate.

The denial was based on Disqualifying Condition AG ¶ 19, with no Mitigating Conditions from AG ¶ 20 applied. Ultimately, the applicant's security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20rejectedFinancial ConsiderationsThe Judge found the applicant's mitigating evidence insufficient to overcome the government's security concerns.

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 1, 2010
Answer filed—Applicant requested a decision on the written record.
Hearing heldFeb 14, 2011Decision made by Administrative Judge Jennifer I. Goldstein.
Decision dateMay 19, 2011Board affirmed the decision.

Cite For

Insufficient Efforts to Mitigate Financial Issues Under Guideline F
Affirmation of Adverse Decisions Based on Unresolved Debts
Limitations on New Evidence Submission During Appeals

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 regarding the denial of a security clearance based on financial considerations. The Applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the analysis of mitigating conditions.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJennifer I. Goldstein — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

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

Why the Board ruled this way

The Board found that the Judge reasonably concluded that the Applicant's financial problems were ongoing and that the mitigating evidence was insufficient to overcome the government's security concerns.

Standard of review applied

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

Appeal Board panel

Michael Y. Ra’anan — Chair
Michael D. Hipple
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 DIGEST: Applicant failed to demonstrate that the Judge erred in her analysis of the mitigating conditions. The Board cannot consider evidence not included in the record. Adverse decision affirmed. CASE NO: 09-07456.a1 DATE: 05/19/2011 DATE: May 19, 2011 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-07456

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 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) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On February 14, 2011, after considering the record, Administrative Judge Jennifer I. Goldstein denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse clearance decision is arbitrary, capricious or contrary to law. Applicant argues that the Judge’s adverse decision should be reversed because the Judge erred in concluding that Applicant’s efforts to resolve his indebtedness were insufficient to mitigate the government’s security concerns. Applicant’s arguments do not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. On appeal, Applicant submits several documents which post-date the Judge’s decision and were not part of the record evidence. Furthermore, other documents submitted by Applicant, although they predate the Judge’s decision were not part of the record before the Judge. The Board cannot consider this new evidence. See Directive ¶ E3.1.29. In this case, the Judge found that Applicant had significant outstanding debts, and was still trying to resolve his financial problems. Although the Judge found that one of his outstanding debts is being paid, and that he disputes some others, the Judge reasonably concluded that there is little indication Applicant’s delinquent accounts are being resolved or are under control . Decision at 6-7. In light of the foregoing, the Judge could reasonably conclude that Applicant’s financial problems were still ongoing. See, e.g., ISCR Case No. 05-07747 at 2 (App. Bd. Jul. 3, 2007). The Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct, and considered the possible application of relevant conditions and factors. While she found in favor of Applicant as to one of the SOR factual allegations, she reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. 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 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. 06-17409 at 3 (App. Bd. Oct. 12, 2007). The Board does not review a case de novo. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for her 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 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). Therefore, the Judge’s unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board