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ISCR 09-08550.a1: Guideline F security clearance appeal (2011) · CASE

ISCR Case 09-08550.a1unknown

Case headnote

ISCR Case No. 09-08550.a1

Feb 25, 2011· Hon. Jeffrey D. Billett· appeal

Summary

This case involved an applicant seeking a security clearance under Guideline F (Financial Considerations), who represented himself. The applicant faced concerns regarding unresolved debts that he attributed to his ex-wife.

Initially, the judge issued a favorable decision, applying mitigating conditions AG ¶ 20(a), AG ¶ 20(b), and AG ¶ 20(c) against the disqualifying condition AG ¶ 20. However, the Appeal Board subsequently reversed this decision.

The reversal was based on two key findings: the applicant's claims regarding the debts lacked corroborating evidence and were not substantially supported. Additionally, the judge's application of mitigating conditions was deemed illogical, particularly given the applicant's continued denial of responsibility for the debts. Consequently, no security clearance was granted.

Conditions referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations Disqualifying Condition

Mitigating

AG ¶ 20(a)rejectedFinancial Considerations Mitigating ConditionThe judge could not logically apply this condition due to the applicant's uncorroborated denial of responsibility.
AG ¶ 20(b)rejectedFinancial Considerations Mitigating ConditionThe judge could not logically apply this condition due to the applicant's uncorroborated denial of responsibility.
AG ¶ 20(c)rejectedFinancial Considerations Mitigating ConditionThe judge could not logically apply this condition due to the applicant's uncorroborated denial of responsibility.

Key rule quoted

“Once a concern arises regarding an applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance.”
Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991).

Procedural posture

SOR issuedJul 20, 2010
Answer filed—
Hearing heldNov 9, 2010
Decision dateFeb 25, 2011

Cite for

Reversal of Favorable Security Clearance Decisions Due to Lack of Corroborating Evidence for Debts
Illogical Application of Mitigating Conditions in Light of Uncorroborated Claims
Strong Presumption Against Granting Security Clearance When Concerns Arise

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

Reversed

The appeal involved a security clearance decision where the Administrative Judge initially granted the clearance based on the Applicant's claims regarding financial debts. The Department Counsel appealed, arguing that the Judge erred in applying mitigating conditions and in the whole-person analysis. The Appeal Board found that the Judge's decision was not supported by substantial evidence and reversed the favorable decision.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowArthur E. Marshall, Jr. granted the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the Government (Department Counsel)Error sustained
The Judge erred in applying the mitigating conditions due to a lack of corroborating evidence for the Applicant's claims.
Decision arbitrary, capricious, or contrary to law, raised by the Government (Department Counsel)Error sustained
The Judge's whole-person analysis was erroneous and did not support the favorable decision.

Why the Board ruled this way

The Judge's findings were not supported by substantial evidence, and the application of mitigating conditions was not logically sound given the Applicant's denial of responsibility for the debts.

Ignored material evidenceNo rational connection between facts and conclusion

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewProcedural compliance

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: Given the Judge’s application of the disqualifying conditions and the implicit ascribing of responsibility for the debts to Applicant, the Judge could not logically apply the mitigating conditions in light of Applicant’s continued and uncorroborated denial of responsibility for the debts. Favorable decision reversed. CASENO: 09-08550.a1 DATE: 02/25/2011 DATE: February 25, 2011 In Re: -------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-08550

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Alison O’Connell, Esq., Department Counsel FOR APPLICANT Pro se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On July 20, 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 9, 2010, after the hearing, Administrative Judge Arthur E. Marshall, Jr., granted Applicant’s request for a security clearance. Department Counsel appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issues on appeal: whether certain of the Judge’s findings of fact were supported by substantial record evidence; whether the Judge erred in his application of the mitigating conditions; and whether the Judge’s whole-person analysis was erroneous. Consistent with the following discussion, we reverse the decision of the Judge. Facts The Judge made the following pertinent findings of fact: Applicant and his wife separated in 1992 and divorced in 1996. In October 2009, during a security clearance interview, Applicant was advised of the existence of two collection accounts in his name. Applicant attributes the underlying debt to his ex-wife. He has done nothing to dispute, resolve, or address them, because he did not believe they would affect him. A credit report shows one account, for $5,845, was opened in 2007 and the other, for $32,973 was opened in 2006 with the date of last activity in 2002. Because they are collection accounts it cannot be determined when the underlying debt was first acquired. A credit report from May 2010 does not show either of the two collection accounts. Applicant’s attorney provided an opinion that the debts are not collectable under state law. Applicant lives well within his means. We review the Judge’s findings of facts to determine if they are supported by substantial evidence–“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966). Department Counsel notes that the Judge relied heavily on a favorable credibility determination of Applicant. Such a determination, however, is not a substitute for record evidence. See, e.g., ISCR Case No. 07-13696 at 5 (App. Bd. Feb. 9, 2009). In this case there is no documentation that corroborates Applicant’s claim the debts are his ex-wife’s. For the larger debt there is no documentary evidence that would corroborate dating the debt back to the marriage. For the smaller debt there is no documentary evidence which would support dating the debt back to prior to the separation. Therefore, to the extent that the Judge found that the debt’s are not really Applicant’s responsibility, those findings are not sustainable. Also, to the extent the Judge relied on the non-presence of debts on a recent credit report as indicia of some sort of corrective action, such a finding is not sustainable, given Applicant’s acknowledgment that he has not acted to dispute the debts.

DISCUSSION

A Judge is required to “examine the relevant data and articulate 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 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). The Appeal Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary, capricious, or contrary to law. Directive ¶¶ E3.1.32.3 and E3.1.33.3. Once a concern arises regarding an applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. “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. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole.” See, e.g., ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20, 2006). In deciding whether the Judge's rulings or conclusions are erroneous, the Board will review the Judge's decision to determine whether: it does not examine relevant evidence; it fails to articulate a satisfactory explanation for its conclusions, including a rational connection between the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference of opinion. In deciding whether the Judge's rulings or conclusions are contrary to law, the Board will consider whether they are contrary to provisions of Executive Order 10865, the Directive, or other applicable federal law. See, e.g., ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). The Judge concluded that Applicant acquired the two debts in the 1990's but failed to address them and invoked appropriate disqualifying conditions. Then the Judge extended favorable application of Financial Considerations Mitigating Condition (FCMC) 20(a),1 FCMC 20(b),2 and FCMC 20(c).3 Department Counsel points out that, given the Judge’s application of the disqualifying conditions (thus ascribing responsibility for the debts to Applicant), Applicant’s continued and uncorroborated denial of responsibility for the debts, and his failure to address them in any way, the Judge could not logically apply any of the three mitigating conditions in Applicant’s favor. We agree. Furthermore, to the extent the Judge is focused on Applicant’s advice of counsel, he in error. Repeatedly Applicant’s counsel qualified his knowledge of the case with language such as “apparently” or Mr. [Applicant] asserts. Applicant’s attorney concluded by saying that the creditors would have had to have sued within a certain period and that Applicant asserts that he has not been sued. The Board has repeatedly held that non-collectibility of a debt does not preclude consideration of the debt and circumstances surrounding it in a security clearance adjudication. See, e.g., ISCR Case No. 10-03656 at 3 (App. Bd. Jan 19, 2011). Finally, Department Counsel persuasively argues that the Judge’s whole-person analysis does not provide an additional reason to grant Applicant a clearance but, rather, essentially restates his mistaken analysis of the mitigating conditions. The record, viewed as a whole, does not support the Judge’s favorable decision. The Judge’s decision is not sustainable.

ORDER

The Judge’s favorable security clearance decision is REVERSED. 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

FOOTNOTES

1 Directive, Enclosure 2 ¶ 20(a): “the behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment[.]”

2 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[.]”

3 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[.]”