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ISCR Case 11-09742.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date7/8/2013
Statusunknown
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionsSee the appeal decision (Case 11-09742.a2) →See the hearing decision (Case 11-09742.h2) →See the hearing decision (Case 11-09742.h1) →
Participants
Applicant Representation: Pro Se
Judge: Jeffrey D. Billett, Michael Y. Ra'anan, William S. Fields
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline FFinancial Considerations · Unknown Outcome

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ISCR Case 11-09742.a1unknown

Case Headnote

ISCR Case No. 11-09742.a1

Jul 8, 2013· Hon. Jeffrey D. Billett· appeal

Summary

This security clearance case involved a 31-year-old female applicant whose eligibility was questioned under Guideline F, Financial Considerations, due to over $31,000 in outstanding debts.

The initial decision was unfavorable; however, the appeal board remanded the case. The board found that the judge's findings lacked sufficient specificity regarding the applicant's personal responsibility for managing her financial obligations.

The mitigating condition applied was AG ¶ 20(b). Ultimately, no final outcome on the security clearance was reached at this stage, as the case was returned for further clarification.

Conditions Referenced

Mitigating

AG ¶ 20(b)appliedMitigating Condition 20(b)The Judge concluded that Applicant had not acted responsibly under the circumstances, but did not specify how.

Key Rule Quoted

“A Judge’s decision must set forth findings and conclusions with sufficient specificity and clarity that the parties and the Board can discern what the Judge is finding and concluding.”

Procedural Posture

SOR issuedOct 19, 2012
Answer filed—
Hearing held—Applicant requested a decision on the written record.
Decision dateJul 8, 2013Decision remanded for corrective action.

Cite For

Insufficient Specificity in Findings Related to Financial Issues
Remand for Clearer Analysis of Applicant's Responsibility Under AG ¶ 20(b)
Importance of Detailed Decision-making 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

Remanded

The appeal involved a denial of a security clearance based on financial considerations under Guideline F. The Applicant argued that the Judge's decision was arbitrary and lacked specificity regarding her financial responsibility. The Board found merit in the appeal and remanded the case for further clarification and analysis by the Judge.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantError sustained
The Judge's decision was arbitrary, capricious, or contrary to law due to insufficient specificity in findings.

Why the Board ruled this way

The Judge's analysis lacked sufficient specificity regarding how the Applicant failed to act responsibly, which is necessary for a reasoned decision. The Board remanded for corrective action to ensure clarity in findings and conclusions.

Missing findings

On remand, the judge must

The Judge should issue a new decision after applying the second prong of AG ¶ 20(b) to the specific facts of the case.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael Y. Ra’anan
Jeffrey D. Billett
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: The Judge concluded that Mitigating Condition ¶ 20(b) partially applied. He concluded that Applicant had not acted responsibly under the circumstances, but did not specify how Applicant failed to act responsibly. A Judge’s decision must set forth findings and conclusions with sufficient specificity and clarity that the parties and the Board can discern what the Judge is finding and concluding. Adverse decision remanded. CASENO: 11-09742.a1 DATE: 07/08/2013 DATE: July 8, 2013 In Re: ------------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-09742

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 October 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

FOOTNOTES

1 “[T]he 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[.]” Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested that the case be decided on the written record. On April 29, 2013, after the close of the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Edward W. Loughran denied Applicant’s request for a security clearance. Applicant appealed, pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. For reasons explained in this decision, the Board remands the Judge’s unfavorable security clearance decision for corrective action. The Judge found: Applicant is 31 years old. Applicant had periods of unemployment after she was discharged from the military in 2005. She was unable to pay all her bills, and a number of debts became delinquent. She is behind on seven debts totaling in excess of $31,000. Three debts that had been delinquent have been paid. She had a garnishment action initiated against her for one of the debts. In August 2012 she indicated that upon completion of her wage garnishment, she would contact her creditors as funds become available. She did not indicate that she received financial counseling. The Judge concluded: Applicant’s unemployment was beyond her control. To be fully applicable, AG ¶ 20(b)1 also requires that the individual act responsibly under the circumstances. The total amount of the six debts that Applicant admitted owing is more than $31,000. She did not establish how those debts would be resolved. There is insufficient evidence for a determination that Applicant’s financial problems will be resolved within a reasonable period. Her financial issues are recent and ongoing. No determination can be made that they are unlikely to recur. They continue to cast doubt on Applicant’s current reliability, trustworthiness, and good judgment. Security concerns remain despite the presence of some mitigation. Applicant disputes the Judge’s finding that she owes a $100 debt to a utility company. She indicates that she has reviewed three credit reports and the debt is not listed on any of them. She asserts that she will either contest or settle the debt if it can be confirmed that the debt is hers. Applicant’s representations regarding the utility account constitute new evidence, which the Board cannot consider. Directive, ¶ E3.1.29. Moreover, the Judge’s finding that Applicant has the outstanding debt in question is established by two credit reports in the evidentiary file. It is well settled that adverse information from a credit report can normally meet the substantial evidence standard and the government’s obligations under ¶ E3.1.14. See, e.g., ISCR Case No. 08-12184 at 7 (App. Bd. Jan. 7, 2010). Applicant has failed to establish error. Applicant argues that she indicated that she has plans to contact her creditors and to make payment arrangements to settle the accounts, but that this statement was overlooked or ignored by the Judge. A Judge is presumed to have considered all the evidence in the record unless he specifically states otherwise. See, e.g., ISCR Case No. 07-00196 at 3 (App. Bd. Feb. 20, 2009). Applicant fails to rebut this presumption. Moreover, in his findings of fact, the Judge mentioned a statement by Applicant wherein she said that upon the completion of her wage garnishment, she would contact her creditors, “as funds become available.” Decision at 3. The Board concludes that this finding establishes that the Judge was aware that Applicant had a desire to pay off her delinquent debts. Applicant has failed to establish error. Applicant asserts that she has not, over the course of her employment, used her position or access to classified material to obtain illegal funds, nor has she been in contact with any party that has ever asked her to leak sensitive information for monetary gain. These facts, while not irrelevant, do not undermine the Judge’s analysis. The government need not wait until an individual mishandles or fails to safeguard classified information before it can make an unfavorable security clearance decision. See ISCR Case No. 08-00435 at 3 (App. Bd. Jan 22, 2009). Applicant states that she is not unwilling to pay her debts, and her financial difficulties were a result of periods of unemployment from which she was attempting to recover. The Board construes this as an argument that the Judge should have applied AG ¶ 20(b) in her favor. The Judge concluded that this mitigating condition partially applied. He acknowledged that Applicant’s periods of unemployment were beyond her control. He went on to state that to be fully applicable, AG ¶ 20(b) also requires that the individual act responsibly under the circumstances. Given the fact that he only partially applied the mitigating condition, it appears the Judge concluded that Applicant did not act responsibly under the circumstances. The Judge’s decision is problematic, however, in that his analysis does not include a discussion as to how, specifically, Applicant has failed to act responsibly. A Judge’s decision must set forth findings and conclusions with sufficient specificity and clarity that the parties and the Board can discern what the Judge is finding and concluding. See, e.g., ISCR Case No. 99-0018 at 2-3 (App. Bd. Dec. 6, 1999). In this case, the Judge’s citation of the second prong of AG ¶ 20(b) without relating it to any specific facts in the case does not provide the parties and the Board with a basis to conclude whether the Judge engaged in reasoned decision making. This error of omission also leaves the Board unable to discern whether the Judge weighed the record evidence in a reasonable, common sense manner. On remand, the Judge should issue a new decision after applying the second prong of AG ¶ 20(b) to the specific facts of the case. Order The decision of the Judge is REMANDED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Member, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board