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ISCR Case 11-00771.a1 — CASE

ISCR Case 11-00771.a1denied

Case Headnote

ISCR Case No. 11-00771.a1

Apr 9, 2012· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing herself, was denied clearance under Guideline F (Financial Considerations) due to significant delinquent debts exceeding $111,300. The appeal board upheld this denial, citing the applicant's failure to provide sufficient evidence of mitigation for these financial obligations.

The judge found limited documentation regarding the specific circumstances that led to the applicant's indebtedness, which she attributed to unemployment and personal issues. Furthermore, there was insufficient evidence of concrete actions taken by the applicant to resolve these debts.

Specifically, the applicant did not seek financial counseling or provide adequate documentation to support her claims of debt resolution. Consequently, the disqualifying conditions under Guideline F were not sufficiently mitigated, leading to the denial of her security clearance.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20(b)rejectedMitigating Condition 20(b)The applicant did not present evidence that her debts arose largely from conditions beyond her control and that she acted responsibly.

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 issuedJul 26, 2011
Answer filed—Applicant represented herself (pro se) and requested a decision on the written record.
Hearing heldJan 6, 2012Decision made by Administrative Judge Robert J. Tuider.
Decision dateApr 9, 2012Appeal board affirmed the adverse decision.

Cite For

Insufficient Evidence to Mitigate Financial Concerns Under Guideline F
Applicant's Burden to Present Evidence in Mitigation After Government Establishes Security Concerns
Rebuttable Presumption That the Judge Considered All Record Evidence

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 argued that the Judge's decision was not supported by evidence and was arbitrary. The Board affirmed the Judge's decision, finding substantial evidence supported the adverse ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRobert J. Tuider — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge's findings were not supported by the evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's material findings of security concern were supported by substantial record evidence and that the Judge reasonably explained why the applicant failed to meet her burden of persuasion.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo 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: Applicant failed to rebut the presumption that the Judge considered all of the record evidence. The Judge’s material findings of security concern were supported by substantial record evidence. Adverse decision affirmed. CASE NO: 11-00771.a1 DATE: 04/09/2012 DATE: April 9, 2012 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-00771

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 July 26, 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 decision on the written record. On January 6, 2012, after considering the record, Administrative Judge Robert J. Tuider 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’s decision was supported by the weight of the record evidence; whether the Judge failed to consider all of the record evidence; and whether the Judge’s decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge found that Applicant had been continuously employed from 1997 until she was laid off in March 2005. After that, she was sporadically employed until she found her current job as a property management specialist for a Defense contractor. She has delinquent debts totaling over $111,300, which she attributes to her unemployment and to her mother’s death. She has not sought financial counseling. Applicant did not submit evidence sufficient to demonstrate the financial impact of her periods of unemployment. The Judge found that, after being laid off in 2005, she became obligated on a car loan for more than $43,000. In a footnote, the Judge cited to a credit report (Item 7) reflecting an automobile loan of $43,531 that was the subject of a repossession action. Additionally, she took six vacation cruises during a period in which she was in debt. The Judge found that the record contained little evidence as to why Applicant became so indebted, whether the circumstances of her indebtedness were beyond her control, or whether she took responsible action in regard to her debts. She has addressed some of her delinquent debts, and the Judge entered favorable findings regarding three of the eight debts alleged in the SOR. However, he found that she had not corroborated some of her claims of debt resolution. For example, she had not provided documentation to support her claim of a payment plan for two of the alleged debts or that she has complied with such a plan. In the Analysis portion of the Decision, the Judge noted Applicant’s age, education, and service as employee of a Defense contractor. However, he also noted that the evidence in the record was “limited.” Decision at 7. Given the paucity of record evidence, the Judge found that Applicant had not mitigated the security concerns raised by her financial difficulties. Applicant contends that the Judge’s findings were not supported by the evidence. In her brief, she cites to each allegation, arguing that the debts have either been paid or are being settled, and she denies that she had ever had a car repossessed. We give due consideration to Applicant’s arguments. Three of the debts alleged in the SOR and that she discusses in her brief were resolved in her favor, including the one pertaining to the automobile repossession. The Judge’s adverse decision is based in large measure on his findings concerning the insufficiency of the evidence to establish any of the mitigating conditions for the remaining allegations. In a DOHA proceeding, once the Government establishes security concerns, the applicant bears the responsibility to present evidence in mitigation or extenuation, according to criteria set forth in the Directive. For example, to establish Financial Considerations Mitigating Condition 20 (b)1 an applicant would be required to present evidence that his debts arose largely from conditions beyond his control and that he acted responsibly under the circumstances. In the case before us, Applicant did not reply to the File of Relevant Material (FORM), thereby passing up an opportunity to present evidence that might establish one or more of the mitigating conditions. Despite Applicant’s contentions on appeal, the Judge’s material findings of security concern are based upon substantial record evidence. See, e.g., ISCR Case No. 11-00970 at 2 (App. Bd. Feb. 28, 2012). Applicant contends that she provided information concerning her debts several times but that the Judge ignored it. A review of the record shows that she provided information regarding her debts on her security clearance application (Item 5) in October 2010; in response to interrogatories (Item 6) in April 2011; and in response to the SOR (Item 4) in July 2011. As stated above, the record contains no response to the FORM, which was dated September 15, 2011. A Judge is presumed to have considered all of the evidence. A Judge is not required to discuss each piece of evidence, which is not possible in any event. See, e.g., ISCR Case No. 09-07597 at 3 (App. Bd. Oct. 19, 2011). In the case under consideration, the Judge discussed much of the evidence cited by Applicant, from all three Items, such as her claims to have a payment plan for two of the debts alleged in the SOR. However, as stated above, the Judge reasonably explained why he concluded that Applicant had failed to meet her burden of persuasion. Applicant has not rebutted the presumption that the Judge considered all of the record 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.’” 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

FOOTNOTES

1 Directive, Enclosure 2 ¶ 20(b).