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ISCR Case 11-04176.a1 — CASE

ISCR Case 11-04176.a1denied

Case Headnote

ISCR Case No. 11-04176.a1

Dec 18, 2012· Hon. Jean E. Smallin· appeal

Summary

A production supervisor was denied a U.S. security clearance under Guideline F, Financial Considerations, due to a history of unresolved financial issues. These issues included a Chapter 7 bankruptcy and significant delinquent debts.

While the applicant presented evidence of good character and job performance, the judge determined that these mitigating factors were insufficient. The primary reason for the denial was the applicant's failure to demonstrate a consistent track record of debt repayment.

Consequently, the disqualifying conditions under AG ¶ 19 outweighed the mitigating conditions under AG ¶ 20, leading to the affirmation of the adverse decision.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20rejectedFinancial ConsiderationsThe applicant did not provide sufficient evidence of a track record of debt repayment.

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 issuedFeb 17, 2012
Answer filed—
Hearing heldSep 19, 2012
Decision dateDec 18, 2012

Cite For

Denial of Security Clearance Due to Unresolved Financial Issues Under Guideline F
Importance of Demonstrating a Track Record of Debt Repayment
Harmless Error Doctrine in Security Clearance Decisions

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 favorable evidence and made erroneous findings. The Board affirmed the Judge's decision, finding that any errors were harmless and did not change the outcome.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRoger C. Wesley — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge failed to consider all of the record evidence.
Erroneous finding of fact — raised by the applicantRejected
The Judge’s findings contain errors.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Judge's findings contained errors, but these errors were deemed harmless and did not affect the outcome of the case. The Board affirmed the Judge's decision based on the overall assessment of the evidence presented.

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

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 Judges findings contained statements which were technically erroneous. However, the errors were harmless. Adverse decision affirmed. CASENO: 11-04176.a1 DATE: 12/18/2012 DATE: December 18, 2012 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-04176

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 February 17, 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 September 19, 2012, after the hearing, Administrative Judge Roger C. Wesley 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’s findings contain errors; 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 findings pertinent to the issues raised on appeal: Applicant is a production supervisor for a Defense contractor. He served in the Air National Guard and as a civilian employee of the Guard for 22 years. In 2010, he changed jobs, which resulted in a loss of income. Applicant experienced financial problems in the 1990s. Accordingly, he filed for Chapter 7 bankruptcy protection and was discharged in 2002. After that discharge, however, he accumulated more delinquent debt, in the amount of about $19,000. Additionally, his home went into foreclosure. He consulted a debt consolidation firm in July 2012, completing an action plan and a budget. The Judge stated that he shows promise concerning his debts, although the record contains little evidence showing actual debt payment. Applicant terminated his relationship with the debt consolidation firm and has elected to deal with his creditors personally. However, as of the close of the record, Applicant had “made no documented payment progress with any of his listed consumer creditors.” Decision at 4. Applicant received numerous decorations and awards during his service to the National Guard. He enjoys an excellent reputation among his supervisors and co-workers for his job knowledge, team spirit, leadership, etc. His civilian performance evaluations are excellent. However, few of his character witnesses had detailed knowledge of his financial problems. In the Analysis, the Judge concluded that Applicant’s financial situation raised security concerns under Guideline F. He also concluded that Applicant had failed to demonstrate a track record of debt repayment. Although citing to Applicant’s evidence of good character and good duty performance, and to evidence of his reduction in income, the Judge found that Applicant had not met his burden of persuasion as to mitigation. Applicant contends that the Judge did not consider evidence favorable to him. For example, he cites to his good character and duty performance, arguing that the Judge failed to take his favorable evidence into account. A Judge is presumed to have considered all of the evidence in the record. See, e.g., ISCR Case No. 09-07219 at 5 (App. Bd. Sep. 27, 2012). In this case, the Judge made detailed findings concerning Applicant’s character evidence and his evidence of job performance. Applicant’s argument on appeal is not sufficient to rebut the presumption that the Judge considered all of the evidence in the record, including the evidence Applicant submitted in his own behalf and cited in his brief. We construe Applicant’s brief as challenging the Judge’s findings regarding his debt repayment. We note, for example, the finding quoted above that Applicant had made no progress with his creditors. Applicant cites to evidence that purports to demonstrate payment of four of the eighteen SOR debts. Applicant Exhibit (AE) AA, does show payment on four debts, two of which are to creditors listed in the SOR. Taken literally, AE AA might undermine the Judge’s categorical statement that Applicant had demonstrated no debt repayment. However, the tenor of the Judge’s decision was that Applicant’s presentation consisted more of promises for future action rather than of a demonstrated track record of debt repayment. See, e.g., ISCR Case No. 09-05390 at 2 (App. Bd. Oct. 22, 2010) (Promises to pay off delinquent debts in the future are not a substitute for a track record of paying debts in a timely manner). This perspective is consistent with the record evidence that was before the Judge. Therefore, even if there are errors in the Judge’s findings, these errors did not likely influence the outcome of the case. Accordingly, they are harmless. See, e.g., ISCR Case No. 10-09281 at 4 (App. Bd. Mar. 5, 2012). Applicant has cited to some Hearing Office cases which he contends support his case for a security clearance. We give these cases due consideration. However, they are not binding on other Hearing Office Judges or on the Appeal Board. See, e.g., ISCR Case No. 09-08099 at 3 (App. Bd. Sep. 14, 2012). The Judge’s decision is sustainable. “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 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