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ISCR 11-08118.a1: Guideline F security clearance appeal, denied (2013) · CASE

ISCR Case 11-08118.a1denied

Case headnote

ISCR Case No. 11-08118.a1

Aug 12, 2013· Hon. Jeffrey D. Billett· appeal

Summary

A defense contractor, employed since 1999, was denied a security clearance under Guideline F (Financial Considerations) due to a delinquent credit card debt. The applicant asserted the debt belonged to his wife and he had no knowledge of it. However, he failed to provide sufficient evidence to substantiate this claim.

Further complicating the assessment, the applicant did not comply with a request to submit a personal financial statement. This omission hindered the ability to fully evaluate his financial situation and the nature of the outstanding debt.

Ultimately, the appeal board affirmed the denial, concluding that the applicant did not adequately demonstrate that the debt was not his responsibility or that he had taken any steps toward its resolution. This lack of clarity and action raised security concerns, leading to the denial of his clearance.

Conditions referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy 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 issuedSep 19, 2012
Answer filed—Applicant acted pro se.
Hearing heldMay 31, 2013
Decision dateAug 12, 2013

Cite for

Denial of Security Clearance Based on Financial Considerations Under Guideline F
Failure to Demonstrate Mitigation of Financial Concerns
Importance of Providing Requested Financial Information in Security Clearance Cases

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 based on financial considerations under Guideline F. The applicant raised issues regarding due process, the consideration of evidence, and the arbitrariness of the decision. The Board affirmed the Administrative Judge's decision, finding no harmful errors in the proceedings.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMatthew E. Malone denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Due-process / fairness, raised by the applicantRejected
Applicant contended that he was denied due process.
Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant argued that the Judge failed to consider all of the evidence in the record.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant claimed that the Judge's adverse 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 Board found that the Judge's findings were supported by substantial evidence and that the Judge did not err in his analysis or conclusions. The Judge's decision was not arbitrary or capricious, and the applicant was afforded due process.

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)
Jeffrey D. Billett
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: A judge is not required to discuss every piece of evidence. Adverse decision affirmed CASENO: 11-08118.a1 DATE: 08/12/2013 DATE: August 12, 2013 In Re: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-08118

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT John V. Berry, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On September 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 May 31, 2013, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Matthew E. Malone 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 Applicant was denied due process; whether the Judge failed to consider all of the evidence in the record; and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact The Judge found that Applicant has worked for his current employer since 2010. He has worked for other Defense contractors since 1999 and has held a security clearance since then. Applicant and his wife have been married since 1999. He was divorced from a previous marriage in 1987. The SOR alleges a single delinquent debt, for a credit card account. The debt has been delinquent since early 2011. When interviewed about this debt, Applicant denied any knowledge of it. In answers to DOHA interrogatories, Applicant claimed that the debt was in the name of his current wife. He provided a letter from a collection agency to his wife regarding this debt. Applicant did not comply with a DOHA request for a personal financial statement. In response to the SOR, he did provide a letter from a debt resolution company representing his wife and addressing settlement negotiations. The account information in the two letters Applicant submitted does not match the information about SOR 1(a) in the credit reports contained in the File of Relevant Material (FORM). The Judge’s Analysis The Judge concluded that the evidence supplied by the Government in the FORM was sufficient to raise security concerns under Guideline F. Regarding mitigation, the Judge concluded that Applicant had failed to meet his burden of persuasion. He stated that Applicant had failed to demonstrate that the debt is not his or that he had taken steps to resolve the debt. He also stated that, because Applicant did not provide the requested financial information, it was impossible for the Judge to assess the state of Applicant’s finances. In the whole-person analysis, the Judge stated that the evidence in the record was not sufficient to show that the debt was not Applicant’s or that Applicant’s finances do not raise reasonable doubts about his suitability for access to classified information.

DISCUSSION

Applicant, who acted pro se in his response to the FORM, contends that he was not completely familiar with the DOHA process, although he did the best he could to submit evidence addressing the debt at issue here. To the extent that Applicant is raising an issue of due process in connection with his self- representation, we note that he was advised in writing, both by Department Counsel as well as by a DOHA paralegal, of his right to submit evidence in response to the FORM. The letter from the paralegal also advised him to give “careful attention” to the question of whether to seek the assistance of counsel or some other person. Moreover, Applicant was provided with a copy of the Directive, which contained detailed information about his rights and responsibilities. The record demonstrates that Applicant was given sufficient notice of his rights. Moreover, he took advantage of those rights by submitting information in response to the FORM. Having decided to represent himself after having properly been advised of his rights, Applicant cannot fairly complain about the quality of his self-representation. See, e.g., ISCR Case No. 10-02364 at 2 (App. Bd. Apr. 4, 2011). Applicant was not denied the due process afforded by the Directive. Applicant contends that the Judge did not consider the evidence he submitted in response to the FORM. We note, however, that the Judge acknowledged Applicant’s submission at the beginning of his Decision. A Judge is not required to discuss every piece of evidence, which is a practical impossibility. Furthermore, the information that Applicant submitted appears to restate matters previously provided, for example, in answers to DOHA interrogatories. There is nothing in Applicant’s response to the FORM that would necessarily suggest to a reasonable person that it should be explicitly discussed in the Decision.1 Applicant also cites to language at the end of his clearance interview summary to the effect that his financial circumstances do not pose a threat of blackmail. He argues that the Judge did not consider this evidence. The language to which Applicant draws our attention is a summary of Applicant’s answers to the interviewer, not the interviewer’s considered opinion of Applicant’s security-worthiness. See, e.g., ISCR Case No. 11-08844 at 3 (App. Bd. Jan. 10, 2013). Applicant offers an alternative interpretation of the record evidence, but he has not rebutted the presumption that the Judge considered all of the evidence. See, e.g., ISCR Case No. 10-04413 at 2 (App. Bd. Feb. 16, 2012). 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).

ORDER

The Decision is AFFIRMED. Signed; Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board

FOOTNOTES

1 In arguing this assignment of error, Applicant refers to the Judge’s finding that the two letters he submitted did not match the information contained in the credit reports. This finding appears to be an error, at least as regards one of the letters. However, reading the decision and the record as a whole, we conclude that any effect this error had is nullified by the Judge’s sustainable finding that the account is in fact a joint account. This error is harmless.