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ISCR Case 10-09478.a1 — CASE

ISCR Case 10-09478.a1denied

Case Headnote

ISCR Case No. 10-09478.a1

Dec 13, 2011· Hon. Jean E. Smallin· appeal

Summary

A federal contractor with a master's degree was denied a security clearance under Guideline F, Financial Considerations, primarily due to child support arrears. The applicant had a history of high income but unilaterally reduced his child support payments without obtaining court approval. This action was viewed as a defiance of a court order, leading to the conclusion that he possessed the financial means to fulfill his obligations but chose not to.

The appeal board affirmed the denial, citing disqualifying conditions AG ¶ 20(a) and AG ¶ 20(c). While mitigating conditions AG ¶ 20(d) and AG ¶ 20(e) were considered, they did not outweigh the concerns regarding the applicant's deliberate failure to adhere to legal financial responsibilities.

The denial underscored the importance of complying with court-ordered obligations in assessing an individual's security worthiness. The key factors in the denial were the unauthorized reduction of child support payments and the applicant's demonstrated ability to pay, coupled with his failure to do so.

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedInability to Satisfy Debts
AG ¶ 20(c)raisedDelinquent Debts

Mitigating

AG ¶ 20(d)rejectedDebt Resolved or Being ResolvedMost debts were resolved in the applicant's favor, but child support arrears remained.
AG ¶ 20(e)rejectedFinancial Difficulties Due to Circumstances Beyond ControlThe applicant's financial difficulties did not excuse his failure to comply with court-ordered payments.

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”
— Directive, Enclosure 2 ¶ 2(b)

Procedural Posture

SOR issuedJun 15, 2011
Answer filed—
Hearing heldOct 6, 2011
Decision dateDec 13, 2011

Cite For

Defiance of Court Orders as a Security Concern Under Guideline F
Financial Delinquencies as Indicators of Unwillingness to Abide by Rules
Importance of Financial Responsibility in Security Clearance 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 was brought by the Applicant after the Administrative Judge denied his request for a security clearance based on financial considerations under Guideline F. The Applicant argued that the Judge erred in assessing his financial ability to meet child support obligations. The Board affirmed the Judge's decision, finding no harmful error in the analysis of the Applicant's financial situation and whole-person assessment.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCarol G. Ricciardello — 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 erred in stating he has the means to pay the full amount of his child support obligation.
Whole-person analysis — raised by the applicantRejected
Applicant argued that the Judge's whole-person analysis was in error.

Why the Board ruled this way

The Board found no error in the Judge's conclusion regarding the Applicant's ability to pay child support, affirming that the Judge's decision was supported by substantial evidence and articulated a rational connection between the facts and the decision made.

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: The Judge’s conclusion that Applicant can afford to pay his child support obligations is not error. Adverse decision affirmed. CASENO: 10-09478.a1 DATE: 12/13/2011 DATE: December 13, 2011 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-09478

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 June 15, 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 October 6, 2011, after the hearing, Administrative Judge Carol G. Ricciardello 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 her application of the pertinent mitigating conditions and whether the Judge’s whole-person analysis was in error. 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 Federal contractor. Divorced in the late 2000s, he has since remarried. He has two children from his previous marriage. Applicant holds bachelor’s and master’s degrees. In the early 2000s, Applicant earned between $200,000 and $250,000, plus bonuses. He changed jobs, and went into the real estate business, along with an associate. The subsequent decline in the real estate market caused Applicant financial difficulties. He and his associate split up the business properties, and Applicant got loan modifications or other means of debt resolution, including spending down his savings account. Most of the debts alleged in the SOR related to Applicant’s business ventures, and the Judge resolved them in Applicant’s favor. However, one allegation stated that he was behind on child support obligations arising from his divorce. Applicant is required to pay $2,500 per month, but, in July 2009, he became unable to pay the full amount and has been paying a lesser one. In February 2009, Applicant filed a petition to reduce his child support payments in view of his changed circumstances. However, as of the close of the record, his child support obligation had not been modified. Applicant’s current annual salary is $173,000. As stated above, the Judge cleared Applicant on his real estate delinquencies. However, in analyzing the security concern arising from his child support arrearage, she stated that his decision to pay a lesser amount each month was his own, made unilaterally, without authorization from the court. She also stated that Applicant currently has the means to pay this amount, and that in failing to do so, “he is in defiance of the court order.” Decision at 8. She concluded that Applicant had not mitigated this security concern. Applicant contends that the Judge erred in her statement that he has the means to pay the full amount of his child support obligation, arguing that the statement conflicted with her finding that, in 2009, he had become unable to make the payments. We have considered the challenged statement in light of the record as a whole. We find no evidence to contradict the Judge’s conclusion that, as of the close of the record, Applicant had the financial ability to make his full child support payment, despite his different circumstances of two years prior. Though Applicant has asserted that, given his reduced salary and other expenses associated with child visitation, he can reasonably expect that his support obligation will be modified, the record does not support a conclusion of a current financial inability to pay the full amount. We find no error in the statement by the Judge. Moreover, given that Guideline F treats financial delinquencies as possible indicators of an unwillingness to abide by rules and regulations, evidence of Applicant’s failure to abide by a court order is directly relevant to an analysis of his security worthiness. Directive, Enclosure 2 ¶ 18. 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: 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