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ISCR Case 09-07683.a1 — CASE

ISCR Case 09-07683.a1denied

Case Headnote

ISCR Case No. 09-07683.a1

Aug 8, 2011· Hon. Jeffrey D. Billett· appeal

Summary

A senior technician for a Defense contractor was denied a security clearance under Guideline F, Financial Considerations, due to numerous delinquent debts totaling $56,724. The judge identified disqualifying conditions related to the applicant's financial history, specifically the significant outstanding debt.

While mitigating conditions were considered, the applicant failed to provide sufficient evidence of responsible action. There was little documentation of debt repayment efforts or attempts to dispute the outstanding amounts. Furthermore, the applicant did not demonstrate engagement in financial counseling or a good-faith effort to resolve the debts.

Ultimately, the judge determined that the applicant did not adequately mitigate the security concerns raised by the financial delinquencies. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 20(b)rejectedConditions Beyond ControlThe applicant did not demonstrate that the conditions resulting in financial problems were largely beyond his control.
AG ¶ 20(c)rejectedCounseling ReceivedThe applicant did not obtain financial counseling.
AG ¶ 20(d)rejectedGood-faith Effort to RepayThe applicant did not demonstrate a good-faith effort to repay overdue creditors.

Key Rule Quoted

“A Judge is presumed to have considered all of the record evidence.”

Procedural Posture

SOR issuedJun 23, 2010
Answer filed—
Hearing heldMay 24, 2011
Decision dateAug 8, 2011

Cite For

Denial of Security Clearance Due to Financial Considerations Under Guideline F
Insufficient Evidence of Debt Repayment and Mitigation Efforts
Presumption That a Judge Considered All Record Evidence in 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 was from an adverse security clearance decision based on financial considerations under Guideline F. The applicant argued that the Judge failed to consider all evidence and that the decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful error in the Judge's assessment of the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRobert J. Tuider — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge failed to consider all of the record evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended 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 considered all relevant evidence and articulated a satisfactory explanation for the decision, with a rational connection between the facts found and the choice made. The adverse decision was 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

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: Applicant has not rebutted the presumption that the Judge considered all of the record evidence. Neither has he demonstrated that the Judge mis-weighed the record evidence. Adverse decision affirmed. CASE NO: 09-07683.a1 DATE: 08/08/2011 DATE: August 8, 2011 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-07683

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 June 23, 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 May 24, 2011, after the hearing, Administrative Judge Robert J. Tuider 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’s adverse decision was arbitrary, capricious, or contrary

FOOTNOTES

1 See Directive, Enclosure 2 ¶ 20(b): “the conditions that resulted in the financial problem were largely beyond the person’s control . . . and the individual acted responsibly under the circumstances[.]”

2 Directive, Enclosure 2 ¶ 20(c): “the person has received or is receiving counseling for the problem and/or there are clear indications that the problem is being resolved or is under control[.]”

3 Directive, Enclosure 2 ¶ 20(d): “the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts[.]” to law. Consistent with the following, we affirm the decision. The Judge made the following pertinent findings of fact: Applicant is a senior technician for a Defense contractor. Born in Guyana, he came to the U.S. at age 10. Married in the late 1980s, he has two stepchildren and two natural children. Applicant has numerous delinquent debts, totaling $56,724. They are for such things as state and federal tax liens, several judgments entered against Applicant, collection accounts for medical services and a credit card, and past due accounts for medical services and for utilities. Applicant is paying off the Federal tax lien at the rate of $75 a month. He has been making these payments for two years. Applicant attributes his financial problems to an unplanned move from the East Coast to the West Coast to care for an injured stepchild; problems he encountered when severing his relationship with an East Coast investment property in which he was part owner; problems he encountered in leaving his East Coast employer; and medical bills incurred in his own behalf. The Judge observed that Applicant provided little evidence either of debt repayment or of efforts to dispute debts. He also found that Applicant’s post-hearing documents were of little relevance, in that they either did not pertain to Applicant’s SOR debts or that they did not contain explanations of their significance. In the Analysis, the Judge found in Applicant’s favor regarding the federal tax lien. However, he concluded that Applicant had failed to demonstrate responsible action with regard to his remaining debts.1 He also stated that Applicant had not obtained financial counseling2 and that Applicant had not demonstrated a good-faith effort to pay off his debts.3 Accordingly, he concluded that Applicant had not mitigated the security concerns raised by the SOR. On appeal, Applicant discusses his interpretation of the record evidence. For example, he focuses on his claim not to owe a tax debt to his state of residence and on his claims not to owe many of the other debts alleged in the SOR. However, the brief is not sufficient to demonstrate that the Judge mis-weighed Applicant’s testimony on these matters, nor is it sufficient to undermine the Judge’s finding that there was little or no corroboration for Applicant’s claims. A Judge is presumed to have considered all of the record evidence. Applicant has not rebutted this presumption, nor has he demonstrated that the Judge mis-weighed the evidence. See, e.g., ISCR Case No. 09-06691 at 3-4 (App. Bd. May 16, 2011). Furthermore, a party’s disagreement with the Judge’s weighing of the record evidence or an ability to argue for an alternative interpretation of the record evidence is not sufficient to demonstrate error. See, e.g., ISCR Case No. 08-08944 at 2 (App. Bd. Nov. 3, 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). 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: 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