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ISCR Case 10-03701.a1 — CASE

ISCR Case 10-03701.a1denied

Case Headnote

ISCR Case No. 10-03701.a1

Mar 14, 2012· Hon. Michael Y. Ra'anan· appeal

Summary

An engineer for a defense contractor was denied a security clearance under Guideline F (Financial Considerations) due to significant financial issues. The applicant had multiple delinquent debts totaling over $100,000, and insufficient evidence was provided to demonstrate repayment or resolution of these obligations.

While the judge acknowledged that personal circumstances, including job loss, contributed to the applicant's financial problems, these factors were not deemed sufficient to fully mitigate the security concerns. The applicant was found not to have taken adequate steps to address the outstanding debts.

The appeal affirmed the denial, underscoring the importance of financial responsibility in security clearance evaluations. The decision highlighted Disqualifying Condition F.3, while Mitigating Conditions F.2 and F.3 were considered but ultimately not applied to overcome the security concerns.

Conditions Referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts

Mitigating

F.2rejectedThe Conditions That Resulted in the Financial Problems Were Largely Beyond the Person's ControlThe judge found that the applicant had not taken adequate steps to mitigate the financial issues.
F.3rejectedThe Person Has Made a Good Faith Effort to Repay Overdue Creditors or Otherwise Resolve DebtsThe judge noted a lack of evidence of significant efforts to address the debts.

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 issuedOct 27, 2010
Answer filed—
Hearing heldNov 21, 2011
Decision dateMar 14, 2012

Cite For

Denial of Security Clearance Based on Financial Considerations Under Guideline F
Importance of Demonstrating Good Faith Efforts to Resolve Debts
Impact of Personal Circumstances on Financial Responsibility Evaluations

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 contended that the Judge failed to apply mitigating conditions properly and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the application of the law or the weighing of evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowArthur E. Marshall, Jr. — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant contends that the Judge failed properly to apply the mitigating conditions, citing to evidence that his financial problems were related to his job loss.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argues that the Judge's adverse security clearance decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no reason to conclude that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. The Judge's adverse decision is sustainable on this record.

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
Jean E. Smallin
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: On appeal Applicant contends that the Judge failed properly to apply the mitigating conditions, citing to evidence that his financial problems were related to his job loss. The Board finds no reason to conclude that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Adverse decision affirmed. CASENO: 10-03701.a1 DATE: 03/14/2012 DATE: March 14, 2012 In Re: ----------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-03701

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Warren J. Borish, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On October 27, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations)

FOOTNOTES

1 The Judge found that Applicant “ provided documentary evidence regarding his actions to address some of [his] debts. However, no documentary evidence was introduced regarding any of the other delinquent debts noted in the SOR.” Decision at 3. of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 21, 2011, after the hearing, Administrative Judge Arthur E. Marshall, Jr., 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 erred in his application of the pertinent mitigating conditions and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Consistent with the following, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: Applicant is an engineer working for a Defense contractor. Applicant’s monthly income includes his current salary plus a monthly pension. He supplemented his income by teaching and by tutoring, but the teaching position was eliminated in 2009, resulting in a loss of $6,000 to $7,000 annually. Applicant fell behind on his mortgage payments. Additionally, his 24-year-old son, who lives away from home, is unemployed and has health problems. Applicant provides his son’s rent, groceries, phone/cable/internet costs, taxes, etc., and he is a co-signer on his son’s college loans. The son is waiting to resolve a medical condition before he seeks employment. Applicant does not have a savings or checking account. He cashes his monthly checks and pays his bills in cash. The SOR alleged 23 delinquent debts. Three have been paid or settled, and the Judge also found that Applicant had possibly made “cursory, incomplete attempts” on five others. The Judge resolved the three paid debts in Applicant’s favor. He entered adverse findings for the remaining ones, citing a lack of evidence of payment or other significant efforts at debt resolution.1 Applicant first experienced financial problems in 2008, a year before he lost his teaching job. He has considered filing for bankruptcy protection, though by the close of the record Applicant had not filed. Chapter 13 bankruptcy is his only articulated strategy for addressing his debts. Applicant owes both federal and state taxes, though these debts were not alleged in the SOR. Applicant’s wife is not able to work, due to medical problems. In the Analysis portion of the Decision, the Judge concluded that Applicant’s circumstances raised Financial Considerations security concerns. In examining Applicant’s case for mitigation, he stated that Applicant’s debts are multiple and, for the most part, unaddressed. He noted that Applicant’s financial problems were, to a limited extent, affected by circumstances beyond his control. However, Applicant has not taken steps to reduce his expenditures, for example seeking his son’s cooperation. The Judge concluded that Applicant “has not fully committed to a bankruptcy plan” and that “Applicant has been exceptionally indulgent with regard to his grown, educated, and unemployed adult son.” Decision at 7, 8. Accordingly, Applicant has not demonstrated a history of debt repayment under such a plan. Applicant contends that the Judge failed properly to apply the mitigating conditions, citing to evidence that Applicant’s problems were related to his job loss, arguing that this event was at the root of his many delinquencies. Applicant’s argument appears to be little more than a disagreement with the Judge’s weighing of the evidence. After considering the record as a whole, we find no reason to conclude that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Applicant takes issue with the Judge’s conclusion that he is not fully committed to bankruptcy and that he is indulgent to his son. In discussing the first of the challenged statements, Applicant cites to evidence outside the record, which we cannot consider. See Directive ¶ E3.1.29 (“No new evidence shall be received or considered by the Appeal Board”). We have examined these statements and find them to be reasonable inferences from the evidence. Moreover, they support the Judge’s conclusion that Applicant has failed to demonstrate mitigation. Applicant argues the Judge erred in placing the origin of Applicant’s financial difficulties in 2008 rather than 2009, when Applicant suffered a decline in income. Given that the amount of the delinquencies exceeds $100,000, this argument is not persuasive, even if one accepts Applicant’s claim on appeal that the decline was $12,000 rather than the $6,000 to $7,000 that the Judge found. In support of his appeal, Applicant has submitted other Hearing Office decisions, which he contends support his case for a security clearance. We give these cases due consideration. However, Hearing Office decisions are not binding on other Hearing Office Judges or on the Appeal Board. See, e.g., ISCR Case No. 10-00218 at 4-5 (App. Bd. Oct. 17, 2011). The cases which Applicant has cited have significant factual differences from his own. They do not demonstrate that the Judge’s adverse findings were arbitrary, capricious, or contrary to law. 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.’” 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: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board