CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 10-04633.a1 — CASE

ISCR Case 10-04633.a1denied

Case Headnote

ISCR Case No. 10-04633.a1

Aug 14, 2012· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, a defense contractor employee with 33 years of service, was denied a security clearance due to significant delinquent debts totaling $46,285, falling under Guideline F (Financial Considerations). The judge identified disqualifying conditions as outlined in AG ¶ 19.

While mitigating conditions AG ¶ 20(a), AG ¶ 20(b), and AG ¶ 20(c) were considered, they were not sufficient to overcome the security concerns. The denial was based on three key factors: the substantial amount of delinquent debt, the applicant's failure to provide corroborating evidence of debt resolution efforts, and the judge's determination that the financial problems were not beyond the applicant's control.

Ultimately, the applicant failed to demonstrate adequate mitigation of the financial concerns, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20(a)rejectedBehavior Happened Long AgoThe judge found that the applicant's debts were ongoing and recent.
AG ¶ 20(b)rejectedCircumstances Beyond ControlThe judge concluded that the applicant's financial problems were not the result of circumstances beyond his control.
AG ¶ 20(c)rejectedCounseling ReceivedThe applicant had not undergone financial counseling.

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 issuedSep 30, 2011
Answer filed—
Hearing heldMay 30, 2012
Decision dateAug 14, 2012

Cite For

Denial of Security Clearance Due to Significant Financial Issues Under Guideline F
Lack of Corroborating Evidence for Debt Resolution
Ongoing Financial Problems Not Considered Beyond the Applicant's Control

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 under Guideline F. The Applicant argued that the Judge failed to consider favorable evidence and misapplied mitigating conditions. The Board affirmed the Judge's decision, finding that the Judge's conclusions were supported by the record and that the Applicant did not demonstrate sufficient mitigation of his financial issues.

Appealed bythe applicant

Applicant representationAttorney

Judge belowDavid M. White — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge failed to consider significant record evidence favorable to him.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argued that the Judge failed properly to apply the mitigating conditions.
Whole-person analysis — raised by the applicantRejected
Applicant claimed that the Judge's whole-person analysis was erroneous.

Why the Board ruled this way

The Board found that the Judge's conclusion regarding the Applicant's failure to mitigate security concerns was supportable and that the Judge had considered all relevant evidence. The Board affirmed the adverse decision based on the lack of sufficient evidence to demonstrate mitigation of the financial issues.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Jeffrey D. Billett
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: The Judge’s conclusion that Applicant had not mitigated the security concerns arising from his delinquent debts is supportable. Applicant failed to rebut the presumption that the Judge considered all of the record evidence. Adverse decision affirmed. CASE NO: 10-04633.a1 DATE: 08/14/2012 DATE: August 14, 2012 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-04633

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Paula W. Phinney, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On September 30, 2011, 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 May 30, 2012, after the hearing, Administrative Judge David M. White 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 failed to consider all of the record evidence; whether the Judge failed properly to apply the mitigating conditions; and whether the Judge’s whole-person analysis was erroneous. Consistent with the following, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: Applicant is an employee of a defense contractor. He has worked for his employer for 33 years, holding a security clearance during his period of employment. Applicant has a significant number of delinquent debts. These debts were for credit cards, totaling $46,285, and for balances due on first and second home mortgages. These two mortgages were taken out to purchase and to upgrade his home. Applicant’s financial problems began when a reduced workload caused him to lose most or all of his overtime. The Judge noted that, in an interview with an OPM investigator in 2010, Applicant stated that he was, at the time, working overtime and that he planned to pay off his delinquent debts by the end of that year. However, at the hearing, he testified that he was not working overtime and that he had paid off only one of the debts addressed in the 2010 interview. In November 2009, Applicant was involved in an automobile accident. He was not at fault. Applicant agreed to a settlement of $30,000, $10,000 of which was to go to his attorney. The remainder was to be paid a few days following the hearing. Although he stated that his intention was to use the settlement to pay off his debts, he demonstrated payment of only one. The Judge held the record open for four weeks after the hearing to enable Applicant to submit evidence of (1) debt resolution and (2) a budget that would avoid additional delinquencies. Although Applicant submitted a document stating that he had made payments toward six of his SOR debts, these assertions were not supported by corroborating evidence. In the Analysis, the Judge concluded that Applicant’s circumstances raised Guideline F security concerns. However, he also concluded that Applicant had not demonstrated mitigation. The Judge stated that Applicant’s financial problems were not the result of circumstances beyond his control, nor did Applicant demonstrate responsible action in regard to his debts.1 He also observed that Applicant had not undergone financial counseling, nor did he provide evidence of progress in resolving most of the debts alleged in the SOR.2 In the whole-person analysis, the Judge stated that Applicant’s debts were ongoing and recent, and that these debts could become a basis for Applicant to be coerced or subjected to duress. He stated that Applicant has not demonstrated that his financial problems are unlikely to recur.3 Applicant contends that the Judge did not consider significant record evidence favorable to him. Among other things, he cites to evidence that he had consulted with a debt counselor ( although he had not taken a financial management course) and that he had paid certain debts. A Judge is presumed to have considered all of the evidence in the record. See, e.g., ISCR Case No. 10-02671 at 3 (App. Bd. Jun. 19, 2012). The Judge discussed the evidence which Applicant has cited. However, he also plausibly explained why this evidence was not sufficient to demonstrate mitigation. For example, the Judge noted that Applicant’s claim to have made progress toward paying off six debts was not corroborated. The Judge’s treatment of the evidence which Applicant has cited in his brief is consistent with the record that was before him. Applicant has not rebutted the presumption that the Judge considered all of the evidence. 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: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, 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

FOOTNOTES

1 Directive, Enclosure 2 ¶ 20(b): “the conditions that resulted in the financial problem were largely beyond the persons’s control . . . and the individual acted responsibly under the circumstances[.]”

2 Directive, Enclosure 2 ¶ 20(c): “the person has received or is receiving counseling for the problem and/or there are clear indications that the problem is being resolved or is under control[.]”

3 Directive, Enclosure 2 ¶ 20(a): “the behavior happened so long ago . . . that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment[.]”