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ISCR Case 10-02576.a1 — CASE

ISCR Case 10-02576.a1denied

Case Headnote

ISCR Case No. 10-02576.a1

Aug 30, 2011· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline E (Personal Conduct) and Guideline F (Financial Considerations) due to insufficient mitigation of security concerns. The denial was based on the presence of disqualifying conditions F1 (a history of not meeting financial obligations) and E2 (deliberate misrepresentation or falsification relevant to the security clearance process).

While mitigating conditions E3 (the individual made prompt, good-faith efforts to correct the falsification) and F2 (the financial problems were not caused by the individual’s irresponsibility) were applied, they were deemed insufficient to outweigh the government's concerns. The judges found that the applicant's evidence did not adequately address the financial issues and personal conduct concerns.

Ultimately, the applicant failed to demonstrate that the judge mis-weighed the evidence, leading to the denial of the security clearance. The mitigating evidence presented was not enough to overcome the established security concerns.

Conditions Referenced

Disqualifying

F1raisedFinancial Considerations
E2raisedPersonal Conduct

Mitigating

E3rejectedPersonal ConductThe Judge reasonably explained why the mitigating evidence was insufficient to overcome all of the government’s security concerns.
F2rejectedFinancial ConsiderationsThe Judge found that the applicant's financial management efforts did not sufficiently mitigate the disqualifying financial issues.

Key Rule Quoted

“The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision.”

Procedural Posture

SOR issuedJan 6, 2011
Answer filed—
Hearing heldJun 6, 2011
Decision dateAug 30, 2011

Cite For

Insufficient Mitigation of Financial Issues Under Guideline F
Weighing of Mitigating Evidence Against Disqualifying Conduct
Presumption That the Judge Considered All Evidence in the Record

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 was filed by the applicant after the Administrative Judge denied his request for a security clearance based on security concerns under Guideline F and Guideline E. The applicant argued that the Judge mis-weighed the evidence and did not adequately consider mitigating factors. The Board affirmed the Judge's decision, finding no harmful error in the weighing of evidence or the decision-making process.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowLeRoy F. Forman — 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 contends that the Judge’s adverse decision is arbitrary, capricious or contrary to law.

Why the Board ruled this way

The Board concluded 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. The Judge's unfavorable security clearance decision is sustainable.

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

Michael Y. Ra’anan — Chair
James E. Moody
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: Applicant failed to rebut the presumption that the Judge considered all of the record evidence. Neither did he demonstrate that the Judge mis-weighed the record evidence. Adverse decision affirmed. CASE NO: 10-02576.a1 DATE: 08/30/2011 DATE: August 30, 2011 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-02576

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 January 6, 2011, 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 June 6, 2011, after the hearing, Administrative Judge LeRoy F. Forman denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse clearance decision is arbitrary, capricious or contrary to law. Applicant contends that the Judge’s adverse decision should be reversed because the Judge mis-weighed the evidence. Specifically, he argues that the Judge’s decision did not give enough consideration to the mitigating evidence presented by Applicant, such as his Army service and his efforts to resolve his financial problems. He also states that he now wishes to hire a lawyer to represent him in his case. Applicant’s presentation does not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. Applicant was provided with written Prehearing Guidance which informed him that he had the option of representing himself without an attorney, being represented by a non-attorney personal representative of his choosing, or being represented by an attorney selected and paid for by himself. Applicant is free to hire a lawyer at any stage of the proceedings. A review of the decision indicates that the Judge reasonably considered evidence favorable to the Applicant including such things as: his 14 years of honorable service in the Army, his history of serious medical problems that were caused or aggravated by his combat service, his marital problems, his completion of an on-line financial management course, and his consultation with a bankruptcy attorney. Decision at 2, 3, 5, 6 and 8. A Judge is presumed to have considered all the evidence in the record. See, e.g., ISCR Case No. 09-06691 at 3-4 (App. Bd. Mar. 16, 2011). There is nothing in the Applicant’s presentation on appeal or in the decision to rebut the presumption that the Judge fairly considered all of the evidence including evidence favorable to the Applicant.

Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. 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. 10-00278 at 2 (App. Bd. Mar. 18, 2011). In this case, the Judge reasonably weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. Decision at 5-8. He found in favor of Applicant with respect to several of the SOR factual allegations, but reasonably explained why the mitigating evidence was insufficient to overcome all of the government’s security concerns. Id. The Board does not review a case de novo. 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 unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board