CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 10-01756.a1 — CASE

ISCR Case 10-01756.a1denied

Case Headnote

ISCR Case No. 10-01756.a1

Jun 2, 2011· Hon. Jean E. Smallin· appeal

Summary

A defense contractor employee was denied a security clearance under Guideline F (Financial Considerations) due to a foreclosed mortgage debt of $26,780. Although the applicant had held a clearance for ten years, the judge determined that disqualifying condition F.3 applied, indicating a history of not meeting financial obligations.

While mitigating conditions F.2 and F.3 were considered, they were ultimately insufficient. The applicant failed to demonstrate responsible behavior concerning the debt, making no attempts to investigate or repay it after ceasing payments.

Consequently, the judge concluded that the applicant had not shown himself to be reliable, trustworthy, or to exercise good judgment, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts

Mitigating

F.2rejectedThe Conditions That Resulted in the Financial Problem Were Largely Beyond the Person's ControlThe applicant's decision to 'walk away' from the debt was not viewed as responsible behavior.
F.3rejectedThe Person Has Received or Is Receiving Counseling for the Financial ProblemCounseling alone did not demonstrate responsible financial behavior.

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 issuedAug 19, 2010
Answer filed—
Hearing heldApr 7, 2011
Decision dateJun 2, 2011

Cite For

Denial of Security Clearance Due to Significant Financial Concerns Under Guideline F
Failure to Demonstrate Responsible Financial Behavior Despite Long-term Clearance
Rejection of Mitigating Conditions Related to Financial Issues

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 who was denied a security clearance due to financial considerations under Guideline F. The applicant argued that the Judge misapplied mitigating factors and conducted an erroneous whole-person analysis. The Board affirmed the Judge's decision, finding substantial evidence supported the adverse ruling.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJennifer I. Goldstein — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argued that the Judge's application of the mitigating factors was erroneous.
Whole-person analysis — raised by the applicantRejected
Applicant contended that the Judge's whole-person analysis was erroneous.

Why the Board ruled this way

The Judge's material findings of security concern were supported by substantial record evidence, and the Applicant failed to rebut the presumption that the Judge considered all of the evidence.

Standard of review applied

Substantial-evidence reviewNo de-novo re-decisionNo new evidence on appealArbitrary-and-capricious review

Appeal Board panel

Jean E. Smallin
William S. Fields
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: The Judge’s material findings of security concern were supported by substantial record evidence. Applicant failed to rebut the presumption that the Judge considered all of the evidence. Adverse decision affirmed. CASE NO: 10-01756.a1 DATE: 06/02/2011 DATE: June 2, 2011 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-01756

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Alan V. Edmunds, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 19, 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 April 7, 2011, after the hearing, Administrative Judge Jennifer I. Goldstein 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’s application of the mitigating factors was erroneous and whether the Judge’s whole-person analysis was erroneous.

FOOTNOTES

1 “Q: And when you realized that there was nothing you could do to refinance the house or short sell the house, what did you do at that point? A: I just, you know, like a lot of people did and have done in this country, they had to walk away from it.” Tr. at 40. The Judge’s favorable finding under SOR ¶ 1(b) is not at issue in this appeal. Consistent with the following, we affirm the decision of the Judge. The Judge found that Applicant is an employee of a Defense contractor who has held a security clearance for approximately ten years. The SOR alleged two debts, only one of which is at issue here. This is $26,780 due on a mortgage debt in foreclosure at the close of the record. Applicant had bought the house for his fiancée to live in. When they terminated the relationship, she moved out and stopped making payments. Applicant also ceased making payments. According to Applicant, interest rate adjustments caused the payments to increase from $1,800 to $4,000 a month. He sought a loan modification, but the request was denied. Applicant then decided to “walk away” from the debt.1 Decision at 2. He made no attempts to sell the property. It was eventually sold through a foreclosure sale. He has taken no action to investigate the debt or repay it. Applicant earns $1,836 twice a month. He has approximately $11,000 in a savings account and $7,436 in a checking account. His 401(k) is worth nearly $101,000. Applicant enjoys a good reputation for trustworthiness, integrity, and job performance. He has received a certificate of appreciation from his employer for his contribution to a project. In the Analysis portion of the decision, the Judge stated that Applicant’s conduct regarding the mortgage debt was troubling. He made no attempt to make a single payment on the mortgage, has not contacted the creditor since walking away from the debt, and has presented no documentation to demonstrate that the debt was satisfied through foreclosure. Although Applicant has received counseling, the Judge concluded that he had not demonstrated responsible behavior in regard to the debt and had presented nothing to show that his problem is under control. She stated that Applicant “has not shown himself to be reliable, trustworthy, or exercising good judgment.” Decision at 6. Accordingly, she denied Applicant a clearance. Applicant challenges the Judge’s statement in the Analysis concerning his not having made a payment on the mortgage. He states that this is not true, that, in November 2007, he attempted to pay $1,800, but the bank wanted the newly adjusted amount of $4,000. However, when the Decision is read in the context of the record as a whole, it is clear that the Judge is referring to Applicant’s conduct after November 2007. The Judge’s material findings of security concern are based upon substantial record evidence. See Directive ¶ E3.1.32.1. (Substantial evidence is “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”). Applicant contends that the Judge failed to consider favorable record evidence, such as his having held a security clearance for ten years without incident or concern, his evidence that he lives within his means, and his evidence of good character and job performance. While these are matters which the Judge was required to consider, along with all of the other evidence in the record, Applicant’s brief is not sufficient to rebut the presumption that the Judge considered all of the evidence in formulating her decision. Neither has he demonstrated that the Judge weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 09- 01735 at 2 (App. Bd. Aug. 31, 2010). 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,’” both as to the mitigating conditions and the whole-person factors. 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: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board