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ISCR 09-07105.a1: Guideline E security clearance appeal, denied (2010) · CASE

ISCR Case 09-07105.a1denied

Case headnote

ISCR Case No. 09-07105.a1

Nov 12, 2010· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing himself, was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline F (Financial Considerations), and Guideline J (Criminal Conduct). The denial was based on a history of significant financial issues, including bankruptcy and approximately $222,000 in debt.

Further concerns arose from the applicant's falsification of information regarding his criminal history during interrogatory responses. These actions were cited as disqualifying conditions under the applicable guidelines.

The appeal board affirmed the denial, noting that the applicant failed to demonstrate rehabilitation or sufficient insight into his past financial and criminal conduct. The board found no evidence to mitigate the identified security risks.

Conditions referenced

Disqualifying

AG ¶ 20raisedCriminal Conduct
AG ¶ 19raisedFinancial Considerations
AG ¶ 16raisedPersonal Conduct

Key rule quoted

“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 issuedMar 23, 2010
Answer filed—Applicant requested a decision on the written record.
Hearing heldAug 24, 2010
Decision dateNov 12, 2010

Cite for

Denial Based on Financial Considerations Under Guideline F
Denial Based on Criminal Conduct Under Guideline J
Denial Based on Personal Conduct Under Guideline E

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, criminal conduct, and personal conduct. 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 proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowNoreen A. Lynch denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline JGuideline E

What the Board reviewed

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

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for her decision, including a rational connection between the facts found and the choice made.

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

Jeffrey D. Billett
Jean E. Smallin
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; Guideline E DIGEST: There is a rebuttable presumption that the Judge considered all the record evidence. Applicant has not overcome that presumption. Adverse decision affirmed. CASENO: 09-07105.a1 DATE: 11/12/2010 DATE: November 12, 2010 In Re: ---- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-07105

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 March 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), Guideline J (Criminal Conduct) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested the case be decided on the written record. On August 24, 2010, after considering the written record, Administrative Judge Noreen A. Lynch denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issues on appeal: whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable decision. The Judge made the following findings: In March 1996, Applicant filed for Chapter 7 bankruptcy. He received a discharge the same year. After the bankruptcy, Applicant worked full time until October 2001, when he was unemployed until February 2002. He changed jobs but remained employed up to the present. Applicant reported having financial problems in April 2006, when he was forced to change positions resulting in a $28,000 pay reduction. In 2008, his wife lost her job. At about the same time, the interest rates on Applicant’s two adjustable rate mortgages increased from four to seven percent. Applicant defaulted on both. The accounts were charged off for an approximate total of $222,000. In July 2010, Applicant agreed to pay $200 and $500 respectively until the two accounts were paid in full. Applicant has not provided any documentation to support his assertion that he started making payments in May 2010. The Judge made the following additional findings: In 1989 Applicant stole property from passengers’ baggage while employed as a baggage handler with an airline. After finding him guilty, the court sentenced Applicant to six months probation. Applicant’s charges were dismissed in 1991. In August 2008, Applicant and his family sustained injuries in an automobile accident. Applicant forged the signature of his supervisor on an insurance company document to verify time and compensation for lost wages. Applicant was charged with giving false/misleading information, fraud and attempted theft. He pleaded guilty to one count of false/misleading information, received unsupervised probation before judgment and was ordered to pay a fine and court costs. On a set of interrogatories given to Applicant in 2009, he indicated that the case was “thrown out without any probation,” and did not list any probation in his interrogatory answers.

The Judge reached the following conclusions: Applicant had a fresh start in 1996 after filing for Chapter 7 bankruptcy. He was steadily employed after that, other than several months of unemployment in 2001. Reduction in his salary, his wife’s job loss, and the increase in mortgage rates may have exacerbated Applicant’s ability to meet his obligations, but he provided no information about his efforts to otherwise meet his obligations. Mitigating conditions do not apply. Despite circumstances that impacted on his finances, Applicant did not act reasonably under the circumstances by allowing his delinquent debts to go unpaid. There is no record of any attempts to eliminate his debt until after he received the SOR. Applicant has not provided evidence of any consistent payment plans. He has not provided documentation to support his claim that he entered into a repayment plan in May 2010. Although there was a 20-year gap in time between Applicant’s two crimes, he has not shown any insight into his behavior. He has not been successfully rehabilitated and shows a pattern of untrustworthy behavior. Applicant admitted that he deliberately falsified material facts in his 2009 response to interrogatories. He did not disclose his guilty plea and one-day probation. His answer that the case “was thrown out” is misleading. In light of his later professed confusion and his past history of untrustworthy behavior, the Judge did not find his later explanations credible. The Judge expressed serious doubts about his good judgment and reliability. Applicant has not mitigated the security concerns under the three referenced guidelines. Applicant asserts that he submitted documents describing his side of the case, and the Judge’s findings indicate that the matters he submitted were not considered. Applicant’s argument does not establish error on the part of the Judge. There is a rebuttable presumption that the Judge considered all the evidence. After a review of the record and the Judge’s decision, the Board concludes that Applicant has not overcome this presumption. The Judge specifically references several of the documents submitted by Applicant in response to the government’s File of Relevant Material and discusses Applicant’s version of some of the events covered by the SOR.

As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. See, e.g., ISCR Case No. 06- 10320 at 2 (App. Bd. Nov. 7, 2007). 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). In this case, the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct and considered the possible application of relevant mitigating conditions. She adequately discussed why the disqualifying conduct established under Guidelines F, J and E was not mitigated. The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007). 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 ultimate unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board