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ISCR Case 10-08192.a1 — CASE

ISCR Case 10-08192.a1denied

Case Headnote

ISCR Case No. 10-08192.a1

Oct 4, 2012· Hon. Jean E. Smallin· appeal

Summary

A security clearance for a former military member and current defense contractor was denied under Guideline F, Financial Considerations. The denial stemmed from significant financial issues, including a Chapter 7 bankruptcy and approximately $35,000 in delinquent debts.

Disqualifying conditions were raised, indicating a pattern of financial irresponsibility. While some mitigating conditions were considered, they were insufficient to overcome the concerns. The applicant failed to demonstrate responsible behavior regarding his debts and did not make good-faith efforts to resolve them.

The appeal board upheld the denial, concluding that the applicant's financial problems were ongoing and unlikely to resolve without intervention. The decision emphasized the applicant's failure to demonstrate the necessary financial responsibility required for a security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 20(a)rejectedFinancial ConsiderationsThe judge concluded that the applicant did not demonstrate that the behavior was unlikely to recur.
AG ¶ 20(b)rejectedFinancial ConsiderationsThe judge found that the applicant's financial issues persisted despite circumstances outside his control.

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 issuedApr 18, 2012
Answer filed—
Hearing heldJul 26, 2012
Decision dateOct 4, 2012

Cite For

Denial of Security Clearance Based on Financial Considerations Under Guideline F
Importance of Demonstrating Responsible Financial Behavior for Clearance Eligibility
Ongoing Financial Issues as a Basis for Clearance Denial

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 seeking a security clearance who was denied due to financial considerations under Guideline F. The applicant argued that the Judge failed to consider and weigh evidence properly and that the decision was arbitrary. The Board affirmed the Judge's decision, finding no harmful error in the Judge's analysis or conclusions.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant argued that the Judge failed to consider all of the record evidence.
No specific harmful error alleged — raised by the applicantRejected
Applicant contended that the Judge failed properly to weigh the evidence.
No specific harmful error alleged — raised by the applicantRejected
Applicant claimed that the Judge's application of the mitigating conditions was in error.
No specific harmful error alleged — raised by the applicantRejected
Applicant asserted 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 decision was supported by substantial evidence and that the Judge properly considered and weighed the evidence presented. The Board concluded that the Judge's adverse decision was not arbitrary or capricious and was consistent with the interests of national security.

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

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: Applicant failed to rebut the presumption that the Judge considered all of the record evidence. Despite the presence of some mitigation, the record supports the Judge’s adverse conclusion. Adverse decision affirmed. CASE NO: 10-08192.a1 DATE: 10/04/2012 DATE: October 4, 2012 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-08192

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 April 18, 2012, 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 July 26, 2012, after the hearing, Administrative Judge Edward W. Loughran 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 weigh the evidence; whether the Judge’s application of the mitigating conditions was in error; and whether the Judge’s adverse security clearance decision was 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 has worked for his current employer, a Defense contractor, since April 2010. He served in the U.S. military from 1998 until 2008 and held a security clearance while doing so. He married in 2000, divorcing six years later. He is married a second time and has three children. Applicant has experienced financial problems for several years. He and his first wife were discharged in Chapter 7 bankruptcy in 2005. Applicant has attributed the difficulties to his former wife’s mismanagement of their finances while he was deployed. After leaving the military he experienced a period of unemployment and what work he did find was not remunerative. He became unable to pay his bills, and he had three cars repossessed. Additionally, Applicant attempted to maintain two households after he and his first wife separated, which exacerbated his debt problems. In addition to the bankruptcy, the SOR alleges 13 delinquent debts, totaling about $35,000. Applicant has admitted these debts. The only financial counseling Applicant has received was that required for his bankruptcy filing. He has made some payments toward his debts, and he has paid off several not alleged in the SOR. He has made no payments since February 2012. He currently earns enough to pay his ordinary expenses plus child support, but he cannot make any payment toward his delinquent debts. He is considering filing for Chapter 13 bankruptcy protection. Applicant received numerous awards and accolades during his military career, and he served at least one deployment to a war zone. He enjoys an excellent reputation for duty performance, responsibility, trustworthiness, and honesty. In the Analysis, the Judge cited to evidence of the first wife’s financial mismanagement, the cost of Applicant having to maintain two households, and Applicant’s unemployment, all of which the Judge described as circumstances outside Applicant’s control. However, he also noted that Applicant’s finances continued to be a problem even after his 2005 discharge in bankruptcy. The Judge concluded that Applicant had not demonstrated responsible behavior regarding his debts, nor had he made good-faith efforts to pay them. He concluded that Applicant’s financial problems are ongoing and that he could not determine that they are unlikely to recur. Although citing to Applicant’s military service in a war zone and his character evidence, the Judge ultimately concluded that Applicant’s case in mitigation did not resolve all doubts raised by his financial problems. Applicant’s brief has cited to various pieces of record evidence, such as his first wife’s contribution to his financial problems, his military service, and his having held a clearance for 10 years while in the service, without incident or concern. This was evidence the Judge was bound to consider, along with the other evidence in the file. A Judge is presumed to have considered all of the evidence in the record. See, e.g., ISCR Case No. 10-06824 at 2 (App. Bd. Apr. 9, 2012). We find nothing in the Judge’s findings or in his analysis of the evidence that would rebut the presumption that he had considered all of the evidence. Moreover, Applicant has not demonstrated that the Judge weighed the evidence in an improper manner. Applicant contends that the evidence supports favorable application of two mitigating conditions, 20(a)1 and (b).2 However, the Judge addressed these provisions in the Analysis. His conclusion that Applicant had failed to meet his burden of persuasion as to mitigation, despite the presence of some favorable evidence, is reasonable. The record demonstrates 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 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

FOOTNOTES

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

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