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ISCR 09-07754.a1: Guideline F security clearance appeal, denied (2011) · CASE

ISCR Case 09-07754.a1denied

Case headnote

ISCR Case No. 09-07754.a1

Jan 26, 2011· Hon. Michael Y. Ra'anan· appeal

Summary

A 34-year-old separated mother with a 15-year-old daughter was denied a security clearance based on Guideline F (Financial Considerations) and Guideline J (Criminal Conduct). The denial stemmed from unresolved delinquent debts totaling over $18,000 and a misdemeanor conviction for reckless endangerment.

While the applicant had resolved some debts, the judges determined she had not acted responsibly regarding her overall financial situation. Disqualifying conditions under Guideline F, specifically AG ¶ 19 and AG ¶ 20, were raised due to the outstanding debts. Although mitigating conditions AG ¶ 20(a) and AG ¶ 20(d) were applied, they were insufficient to overcome the concerns.

The judges rejected the applicant's claims of unfair treatment and requests for additional time to pay her debts. Consequently, the security clearance was denied, affirming that the unresolved financial delinquencies and the criminal conduct presented an unacceptable security risk.

Conditions referenced

Disqualifying

AG ¶ 20raisedCriminal Conduct
AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20(d)rejectedCriminal Conduct - Mitigating CircumstancesThe applicant's overall conduct did not demonstrate responsible management of her debts.
AG ¶ 20(a)rejectedFinancial Considerations - Mitigating CircumstancesThe applicant's efforts to resolve some debts were insufficient to mitigate the overall financial 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 issuedMay 27, 2010
Answer filed—
Hearing heldOct 19, 2010
Decision dateJan 26, 2011

Cite for

Denial of Security Clearance Due to Unresolved Financial Issues Under Guideline F
Impact of Criminal Conduct on Security Clearance Eligibility Under Guideline J
Authority Limitations of DOHA Judges Regarding Debt Repayment Extensions

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 after being denied due to financial considerations and criminal conduct. The applicant raised issues regarding the Judge's consideration of evidence and fairness in the proceedings. The Board affirmed the Judge's decision, finding no harmful error and that the Judge's conclusions were supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCarol G. Ricciardello denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant contended that the Judge did not consider evidence of her repayment efforts.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argued that she was treated unfairly during the proceedings.
No specific harmful error alleged, raised by the applicantRejected
Applicant claimed the Judge should have given her more time to pay her debts.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge considered all relevant evidence and articulated a satisfactory explanation for the decision, affirming that the adverse decision was sustainable on the record.

Standard of review applied

No de-novo re-decisionNo new evidence on appealSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural compliance

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; Guideline J DIGEST: DOHA Judge do not have authority to give an Applicant more time to pay her debts. Adverse decision affirmed. CASENO: 09-07754.a1 DATE: 01/26/2011 DATE: January 26, 2011 In Re: -------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-07754

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Marc G. Laverdiere, Esq., Department Counsel FOR APPLICANT Pro se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On May 27, 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 J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On October 19, 2010, after the hearing, Administrative Judge Carol G. Ricciardello 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 Applicant was treated fairly. Consistent with the following discussion, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: Applicant is 34 years old and separated from her husband. She has a 15-year-old daughter. Applicant was involved in altercations in 2005 and 2008. The 2008 incident led to charges. Applicant pled guilty to one misdemeanor count of reckless endangerment. She was sentenced to five days in jail, a small fine and three years unsupervised probation. She will be on probation until May 2012. Applicant had six delinquent debts. She has resolved three of them. The three outstanding delinquent debts involve credit cards and total over $18,000. Applicant’s appeal brief cites to evidence that was not before the Judge. The Board cannot consider new evidence on appeal. See Directive ¶ E3.1.29. Applicant contends that the Judge did not consider evidence that Applicant had engaged in repayment of some of her debts. However, a Judge is presumed to have considered all of the evidence in the record. See, e.g., ISCR Case No. 08-06873 at 2 (App. Bd. Dec. 18, 2009). In her decision, the Judge discussed Applicant’s efforts at repayment and found in her favor on three debts. However, the Judge also explained why she concluded that Applicant had not acted responsibly as to her debt situation viewed as a whole. Applicant also challenges the Judge’s findings of fact on the criminal allegations. The Judge found for Applicant on the 2005 allegation. Although the Judge’s remaining findings contain harmless error, Applicant has not rebutted the presumption that the Judge considered all of the record evidence. Neither has Applicant demonstrated that the Judge mis-weighed the record evidence. See, e.g., ISCR Case No. 06-21819 at 2 (App. Bd. Aug. 13, 2009). We find no reason to conclude that the Judge’s application of the mitigating conditions or whole person factors was in error. Applicant’s brief asserts that she followed the Judge’s instructions and yet she was still denied a clearance. The Board construes this as an assertion that she was treated unfairly. The Judge left the record open for Applicant to submit additional documentation. In this context there was explicit reference to specific debts. The Judge found for Applicant on those debts. The Board finds no basis to conclude that Applicant was treated unfairly or denied due process. Applicant argues that the Judge should have given her more time to pay her debts. The Board has previously noted that DOHA Judges lack that authority. Compare ISCR Case No. 08- 04492 at 3 (App. Bd. May 20, 2010). After reviewing the record, we conclude 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: 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