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ISCR Case 11-07810.a1 — CASE

ISCR Case 11-07810.a1denied

Case Headnote

ISCR Case No. 11-07810.a1

Aug 5, 2013· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, represented by counsel, was denied a security clearance under Guideline F (Financial Considerations) due to a significant and lengthy history of financial delinquency exceeding $25,000. The Appeal Board affirmed this denial, concluding that the applicant failed to adequately mitigate the security concerns.

Specifically, the applicant did not contact creditors to resolve her acknowledged debts, despite having the financial means to do so. Furthermore, the applicant's disputes regarding her debts were found to lack credibility.

The decision cited Disqualifying Condition AG ¶ 19, while Mitigating Conditions AG ¶ 20 and AG ¶ 21 were considered but ultimately not applied to overcome the security concerns. The security clearance was therefore denied.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20rejectedFinancial ConsiderationsThe applicant's arguments for mitigation were insufficient as she had not resolved her debts.
AG ¶ 21rejectedWhole PersonThe applicant's favorable evidence did not outweigh the unfavorable evidence presented.

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 issuedOct 26, 2012
Answer filed—
Hearing held—decided on the written record
Decision dateAug 5, 2013

Cite For

Insufficient Mitigation of Financial Delinquency Under Guideline F
Credibility of Applicant's Debt Disputes
Burden of Proof Shifts to Applicant After Government Raises Security Concerns

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 after being denied due to financial considerations under Guideline F. The applicant argued that the Judge's decision was arbitrary and did not properly consider mitigating factors. The Board affirmed the Judge's decision, finding no harmful error in the application of the law or the weighing of evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJoan Caton Anthony — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board concluded that the Judge examined the relevant data and articulated a satisfactory explanation for her decision, affirming that the unfavorable security clearance decision was sustainable.

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

Michael Y. Ra’anan — Chair
Jean E. Smallin
William S. Fields

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: Hearing Office decision are not binding on other Hearing Office judges or on the Appeal Board. Adverse decision affirmed. CASENO: 11-07810.a1 DATE: 08/05/2013 DATE: August 5, 2013 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-07810

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Paul W. Phinney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On October 26, 2012, DoD 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 that the case be decided on the written record. On May 2, 2013, after considering the record, Defense Office of Hearings and Appeals Administrative Judge Joan Caton Anthony denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse clearance decision is arbitrary, capricious or contrary to law. Applicant contends that the Judge should have favorably applied the mitigating conditions and whole person factor in Applicant’s case because Applicant’s unpaid debts were not recent, she had paid off debts that had not been listed in the SOR, she had disputed some of her debts, she had engaged the services of a credit counseling agency, and she had a long work record. Applicant’s argument does not establish that the Judge erred in her application of the Directive’s conditions and factors. Applicant also asserts that the Judge did not consider evidence submitted by Applicant in response to the File of Relevant Material (FORM). The Judge explicitly cited to that evidence. See Decision at 4 and 7. Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. A party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 12-09326 at 2 (App. Bd. Jun. 18, 2013). In reaching her adverse decision, the Judge noted that Applicant had a lengthy history of financial delinquency that continued to the present time. She had not contacted creditors to resolve over $25,000 in delinquent debt which she acknowledged as hers, even though she had not experienced reversals beyond her control and had been steadily employed by her current employer for three years. Her personal financial statement showed that she had the financial resources to pay or settle her old debts but had not done so. Additionally, the Judge found that Applicant’s disputes of her debts lacked credibility when viewed against her own admissions of the debt on her e-QIP and in her interview with an OPM investigator. Decision at 7. In light of the forgoing, the Judge could reasonably conclude that the government’s security concerns had not been mitigated. See, e.g., ISCR Case No. 12-11097 at 2 (App. Bd. Jun. 20, 2013). In her brief, Applicant cites to other Hearing Office cases, which she argues support her position that she ought to be granted a security clearance. The Board gives these cases due consideration. However, Hearing Office decisions are not binding on other Hearing Office Judges or on the Appeal Board. See, e.g., ISCR Case No. 10-05909 at 4 (App. Bd. Sep. 27, 2012). Nothing contained in the cited cases establishes error on the part of the Judge in this case.

The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for her decision. “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). Therefore, the Judge’s unfavorable security clearance decision is sustainable.

ORDER

The 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; William S. Fields William S. Fields Administrative Judge Member, Appeal Board