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ISCR Case 11-10499.a1 — CASE

ISCR Case 11-10499.a1denied

Case Headnote

ISCR Case No. 11-10499.a1

Aug 21, 2013· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, representing himself, was denied clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The applicant had approximately $43,000 in delinquent debts owed to seventy-two creditors, primarily for medical bills.

Additionally, the applicant had a history of criminal conduct, which included multiple arrests for driving under the influence and spousal abuse. These issues raised disqualifying conditions under the relevant guidelines.

The judge determined that the applicant's financial and criminal issues were disqualifying and that no mitigating factors were presented to overcome these concerns. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

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 issuedNov 19, 2012
Answer filed—
Hearing heldJun 13, 2013
Decision dateAug 21, 2013

Cite For

Disqualifying Financial Considerations Under Guideline F Due to Significant Delinquent Debts
Disqualifying Personal Conduct Due to a History of Criminal Behavior
The Standard for Granting Security Clearance Being Consistent with 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 a denial of a security clearance based on financial considerations and personal conduct. The applicant argued that he was advised to file for bankruptcy, but the Board found no harmful error and affirmed the Judge's decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDarlene Lokey Anderson — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant claimed that the Judge and Department Counsel advised him to file for bankruptcy.

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 concluded that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for the decision, with no harmful error affecting the outcome.

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
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; Guideline E DIGEST: Applicant claimed that after the hearing, the Judge and Department Counsel informed him that he should file Chapter 7 bankruptcy. On this record, the Board concludes that Applicant was not prejudiced by the colloquy since, as late as his appeal brief, he states that he “will be filing” bankruptcy. The case outcome was not affected by any dialogue between Applicant, the Judge or the Department Counsel regarding a prospective bankruptcy. Adverse decision affirmed. CASENO: 11-10499.a1 DATE: 08/21/2013

DATE: August 21, 2013 In Re: -------------------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-10499

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 November 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) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended)

FOOTNOTES

1 The Judge made formal findings favorable to the Applicant on some allegations brought forth under both Guideline F and Guideline E. Those favorable findings are not challenged on appeal. (Directive). Applicant requested a hearing. On June 13, 2013, after the close of the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Darlene Lokey Anderson denied Applicant’s request for a security clearance. Applicant appealed, pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.1 Applicant raises the following issues on appeal: whether the Judge and Department Counsel told Applicant to file a bankruptcy petition and whether the Judge’s decision should be reversed. For the following reasons, the Board affirms the Judge’s unfavorable security clearance decision. The Judge found: Applicant has approximately $43,000 in delinquents debts to seventy two creditors. Most of his delinquent debts are medical bills. Applicant has a history of criminal conduct including spousal abuse, three DUI arrests and an arrest for Possession of a Controlled Substance. He has also been cited and fined for speeding on at least thirteen occasions. In May 2011, Applicant prepared a security clearance application (SCA) in which he provided false answers to two questions. The Judge concluded that Applicant’s false answers were not deliberate but that Applicant’s criminal history was extensive and not mitigated. The Judge also concluded that Applicant’s financial history was disqualifying and not mitigated. The Judge’s whole person analysis was consistent with her analysis under the individual guidelines. Applicant claims that after the hearing the Judge and Department Counsel “both informed that I should file Chapter 7 bankruptcy.” He goes on to say he will be filing Chapter 7 bankruptcy. Applicant’s assertions in this regard go beyond the record evidence and the Board cannot consider new evidence on appeal. See Directive ¶ E3.1.29. In this case, there is discussion on the record by the Judge and (to a lesser extent) Department Counsel regarding the possibility of Applicant filing for bankruptcy, perhaps after being denied a clearance in the current adjudication but prior to a reapplication. Tr. at 91-97. That discussion could arguably be interpreted as advising the Applicant. The Board has previously noted that “[g]iving advice to Applicant on what to do to qualify for a security clearance would be inconsistent with the Board’s obligation to conduct itself in a fair and impartial manner,” and “the Board cannot and will not advise Applicant about what action or actions he can or should take.” See ISCR Case No. 03-01578 at 4 (App. Bd. May 27, 2004). However, the Board has also noted “that it does not have supervisory jurisdiction or authority over the conduct of Department Counsel or Hearing Office Administrative Judges.” See ISCR Case No. 02-04344 at 3 (App. Bd. Sep 15, 2003). On this record, the Board concludes that Applicant was not prejudiced by the colloquy since, as late as his appeal brief, he states that he “will be filing” bankruptcy. The case outcome was not affected by any dialogue between Applicant, the Judge or the Department Counsel regarding a prospective bankruptcy. Applicant states that he would like the Judge’s decision to be reversed because he is good, hard working and not a security risk. 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. See, e.g., ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007). 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. 06-17409 at 3 (App. Bd. Oct. 12, 2007). After reviewing the record, the Board concludes 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 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 ultimate unfavorable security clearance decision is sustainable. Order The decision of the Judge 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board