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ISCR Case 10-00036.a1 — CASE

ISCR Case 10-00036.a1denied

Case Headnote

ISCR Case No. 10-00036.a1

Aug 18, 2011· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, representing himself, was denied clearance under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from two primary issues: significant financial delinquencies and deliberate omissions of derogatory information on his application.

The applicant had accrued $85,000 in delinquent debt that remained unaddressed. Furthermore, he failed to disclose this derogatory financial information on his security clearance application. The judge found the applicant's explanations for these omissions not credible, determining that there was an intent to conceal.

Disqualifying conditions under AG ¶ 20 and AG ¶ 15 were raised, while mitigating conditions under AG ¶ 21 and AG ¶ 17 were applied. However, the judge concluded that the applicant's financial issues posed a security risk and that his lack of candor demonstrated poor personal conduct. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe applicant did not provide reliable evidence of meaningful steps to address his debts.
AG ¶ 17rejectedPersonal ConductThe applicant's omissions were intentional and not mitigated by his claims of incompleteness.

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 issuedNov 18, 2010
Answer filed—Applicant represented himself.
Hearing heldMay 31, 2011
Decision dateAug 18, 2011

Cite For

Deliberate Omissions of Financial Delinquencies Under Guideline F
Credibility of Applicant's Explanations for Omissions Under Guideline E
Standards for Evaluating Mitigating Conditions in Financial Cases

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 a denial of a security clearance based on financial considerations and personal conduct. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it sustainable and reasonable based on the evidence presented.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMarc E. Curry — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline 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 findings were supported by substantial evidence and that the Judge's treatment of the mitigating conditions was reasonable. The Board concluded that the Judge's decision was not arbitrary, capricious, or contrary to law.

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 E DIGEST: The Judge’s finding that Applicant deliberately omitted information from his security clearance application was sustainable. The Judge’s treatment of the mitigating conditions was reasonable. Adverse decision affirmed. CASE NO: 10-00036.a1 DATE: 08/18/2011 DATE: August 18, 2011 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-00036

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 November 18, 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 E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On May 31, 2011, after the hearing, Administrative Judge Marc E. Curry 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 issue 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 pertinent findings of fact: Applicant accrued $85,000 of delinquent debt that remains outstanding. He has neither organized payment plans, nor retained a credit counselor to help him resolve these debts. Applicant failed to list any of his derogatory financial information, as required on two pertinent sections of his security clearance application that he completed in April 2009. Applicant was aware of his delinquencies when he completed the application, but chose to omit them because “they were so numerous.” The Judge reached the following conclusions: So long as Applicant’s debt delinquencies are outstanding and unaddressed, he remains a security risk under Guideline F. Applicant’s explanation that he was aware of his debt delinquencies, but chose not to include them on his security clearance application because they were too numerous is not credible. Applicant omitted the derogatory information with the intention of concealing it. His actions were unmitigated. Applicant asserts that he did not consciously or deliberately fail to disclose any information requested of him by the Government. He maintains that his security clearance application was simply submitted incomplete, and the lack of completeness stemmed from his inability to obtain a detailed credit report. He claims he did not have enough time or energy to gather all the information required. Applicant requests that the word “deliberate,” when used by the Judge, be removed from any and all documents concerning his security clearance application. He also states that he is working hard to resolve his debts and that deciding to pay his bills rather than filing for bankruptcy demonstrates integrity. Applicant’s assertions do not establish error on the part of the Judge. 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. 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). Applicant’s arguments concerning efforts to retire debt, and his state of mind at the time he completed his security clearance application are nothing more than an alternate view of the record evidence. 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 conditions and factors. He discussed the applicability of the mitigating factors listed under Guidelines F and E and indicated in some detail why the mitigating conditions did not apply. These conclusions were reasonable given the Judge’s findings about the nature of Applicant’s indebtedness, the circumstances under which it arose, and Applicant’s failure to produce reliable evidence establishing that he is taking meaningful steps toward addressing his financial problems. Also, the Judge’s conclusions regarding Applicant’s failure to report his financial troubles on his security clearance application are reasonably supported by the record evidence. Regarding Applicant’s request to have the word “deliberate” excised from the record and case file, he is asking for relief that the Board is not authorized to grant, irrespective of the merits of his request. 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 his 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