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ISCR 11-08087.ind: Guideline F security clearance appeal, denied (2013) · CASE

ISCR Case 11-08087.inddenied

Case headnote

ISCR Case No. 11-08087.ind

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

Summary

An applicant, representing himself, was denied a security clearance under Guideline F (Financial Considerations) due to ten delinquent debts totaling $28,061. These debts primarily originated from a 2007 accident.

Despite continuous employment since the accident, the applicant failed to demonstrate responsible management of his financial obligations. He did not provide evidence of a meaningful repayment plan or any other responsible financial behavior to address the outstanding debts.

Consequently, the adjudicator found that the disqualifying conditions under Guideline F were not sufficiently mitigated, leading to the denial of the security clearance.

Conditions referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 20(b)rejectedConditions Beyond ControlThe judge acknowledged the applicant's accident but concluded he did not act responsibly in managing his debts.

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 issuedJun 19, 2012
Answer filed—Applicant requested a decision on the written record.
Hearing heldDec 12, 2012
Decision dateMar 5, 2013

Cite for

Failure to Demonstrate Responsible Financial Behavior Under Guideline F
Rejection of Mitigating Conditions Based on Lack of Evidence of Repayment Plans
Affirmation of Adverse Decisions Based on National Security Interests

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 arbitrary and capricious. The Board affirmed the Judge's decision, finding that the Judge had adequately considered the evidence and provided a reasonable explanation for the adverse decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJames F. Duffy 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 argued that the Judge's adverse 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 the evidence presented by the Applicant. The Board concluded that the Judge's findings and conclusions were not arbitrary or capricious.

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
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 evidence in the record. Although the Judge considered evidence that Applicant’s financial circumstances were to some extent beyond his control, he plausibly explained why Applicant had failed to act responsibly in response to those circumstances. Adverse decision affirmed. CASE NO: 11-08087.ind DATE: 03/05/2013 DATE: March 5, 2013 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-08087

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On June 19, 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 a decision on the written record. On December 12, 2012, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge James F. Duffy denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings The Judge found that Applicant has worked for his current employer, a Defense contractor, since 2006. Applicant has ten delinquent debts totaling $28,061. The debts were related to an accident Applicant suffered in 2007, which caused him to be hospitalized and to miss work. He set up a payment plan on two hospital accounts. These two accounts were later split into seven, each requiring payment of $25 a month. He paid on two of the accounts but not on the remainder. As a consequence, his accounts were placed in collection. Applicant acknowledged to the clearance investigator that he had not been responsible with his bills. Seven of the nine debts alleged in the SOR are owed to a single collection agency. He provided copies of money orders demonstrating three payments of $25 each to that agency, although the dates on two of these money order are not legible. In addition to his medical expenses, Applicant also has a charged-off credit card account. He advised that if he knew what collection agency was handling this account he would make arrangements to pay if off. The Judge’s Analysis The Judge acknowledged Applicant’s evidence of his accident, which was a condition beyond his control that contributed to his financial problems.1 However, he also concluded that Applicant had failed to demonstrate responsible action in regard to his debts. He stated that Applicant had been fully and continuously employed in the years since his accident, but that he had made few payments on some of the SOR debts and had provided no proof of action regarding others. In the whole-person analysis, the Judge stated that Applicant had not demonstrated a meaningful track record of debt repayment or a realistic plan of debt resolution.2 Accordingly, he concluded that Applicant had not mitigated the security concerns arising from his delinquent debts. Discussion of Appeal Issues Applicant cites to record evidence of his accident and of the effect that the accident had on his finances. He also points to evidence of his debt repayment efforts. He argues that this evidence supports his request for a clearance. To the extent that he is arguing that the Judge failed to consider the cited evidence, a Judge is presumed to have considered all of the evidence in the record. See, e.g., ISCR Case No. 10-11083 at 2 (App. Bd. Dec. 18, 2012). In the case before us, the Judge made detailed findings about Applicant’s accident and about his efforts to repay his debts, discussing these findings in the Analysis portion of the Decision. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record, nor has he supplied a reason to believe that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. To the extent that Applicant is arguing that the Judge improperly denied him mitigation because the accident was beyond his control, such argument is not persuasive. The Judge noted that the accident was beyond Applicant’s control but explained that Applicant had not acted responsibly under the circumstances. Given the record that was before him, the Judge’s overall adverse conclusion about Applicant’s security worthiness is supportable. The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The 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 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 See Directive, Enclosure 2 ¶ 20(b): “the conditions that resulted in the financial problem were largely beyond the person’s control (e.g., loss of employment, a business downturn, unexpected medical emergency, or a death, divorce or separation), and the individual acted responsibly under the circumstances[.]”

2 See, e.g., ISCR Case No. 08-12184 at 10 (App. Bd. Jan. 7, 2010) (Good faith effort to resolve debts must be evidenced by a meaningful track record of repayment); ISCR Case No. 11-03403 at 2, n. 4 (App. Bd. Aug. 23, 2012)(In a Guideline F case, an applicant must act responsibly under the circumstances and develop a reasonable plan for repayment, accompanied by conduct which evidences a serious effort to effectuate the plan).