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ISCR Case 11-10695.a1 — CASE

ISCR Case 11-10695.a1denied

Case Headnote

ISCR Case No. 11-10695.a1

Jan 24, 2014· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance was denied for an applicant, a mother of three, under Guideline F (Financial Considerations). The applicant admitted to $8,000 in delinquent debt and disputed an additional $5,000. This admitted debt raised security concerns, leading to the application of Disqualifying Condition AG ¶ 19.

The applicant presented mitigating evidence under AG ¶ 20(a), AG ¶ 20(b), and AG ¶ 20(c). However, the judge found this evidence insufficient, primarily due to a lack of documentation supporting the applicant's claims regarding the disputed debt and efforts to resolve financial issues. The judge concluded that the applicant had not adequately mitigated the government's security concerns.

The appeal board affirmed the judge's decision, noting that the applicant failed to demonstrate any error in the judge's assessment of the evidence. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20(a)rejectedThe Behavior Was Not RecentThe judge found that the applicant's financial issues were ongoing and not mitigated.
AG ¶ 20(b)rejectedThe Conditions That Resulted in the Behavior Were Beyond the Person's ControlThe judge determined that the applicant did not provide sufficient evidence to support this claim.
AG ¶ 20(c)rejectedThe Person Has Received or Is Receiving Counseling for the ProblemThe judge found the evidence of counseling insufficient to mitigate the concerns.

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 issuedDec 12, 2012
Answer filed—
Hearing heldOct 15, 2013
Decision dateJan 24, 2014

Cite For

Insufficient Documentation as a Basis for Mitigating Financial Concerns
Weight of Disqualifying Circumstances in Security Clearance Decisions
The Standard for Granting Clearance Related to 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 was brought by the applicant after the Administrative Judge denied her request for a security clearance based on financial considerations. The applicant argued that the Judge did not consider all evidence, misapplied mitigating conditions, and provided an insufficient whole person analysis. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMarc E. Curry — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge did not consider all the evidence.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant contended that the Judge improperly applied the mitigating conditions.
Whole-person analysis — raised by the applicantRejected
Applicant claimed that the Judge's whole person analysis was insufficient.

Why the Board ruled this way

The Board found that the Judge properly considered the evidence and applied the relevant mitigating conditions. The Judge's decision was not arbitrary or capricious and was supported by substantial evidence.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference 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: The Judge explicitly discussed the mitigating evidence which applicant asserts was not considered. Adverse decision affirmed. CASENO: 11-10695.a1 DATE: 01/24/2014

DATE: January 24, 2014 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-10695

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Richard L. Morris, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On December 12, 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 hearing. On October 15, 2013, after the hearing, Defense Office of Hearings and Appeals Administrative Judge Marc E. Curry 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 issues on appeal: whether the Judge considered all the evidence; whether the Judge properly applied the mitigating conditions; and whether the Judge’s whole person analysis is sufficient. For the reasons set forth below, the Board affirms the Judge’s adverse security clearance decision. The Judge noted that Applicant, a mother of three, admitted to incurring $8,000 of delinquent debt cited in the SOR, while denying the remaining $5000 of alleged delinquent debt. The Judge also discussed her military service, her contentions that her ex-husband, a drug addict, was responsible for much of her debt, her successful challenges to some debts, and the lack of corroboration for her explanations of other debts.

The Judge discussed the mitigating conditions and concluded that three of them applied in part or in full. The Judge discussed the mitigating evidence and found for Applicant on several of the debts alleged in the SOR. However, the Judge concluded that the lack of documentation in support of some of her claims of debt payment or debt dispute resolution was too significant given the number of debts “with statuses that are unverified or unresolved.” Decision at 7. A judge is presumed to have considered all the evidence unless he specifically states otherwise. See, e.g., ISCR Case No. 07-00196 at 3 (App. Bd. Feb. 20, 2009). In this case, the Judge explicitly discussed the evidence which applicant asserts was not considered. Therefore, Applicant has not demonstrated error. 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. 12-11097 at 2 (App. Bd. Jun. 20, 2013). In this case the Judge discussed and applied three mitigating conditions in part or in full. He articulated a rational reason to conclude that Applicant had not mitigated the entirety of the government’s security concerns. The Judge’s rationale is sustainable on this record. Although the whole person analysis was brief, Applicant has not demonstrated that it was erroneous. A review of the record indicates that the Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying circumstances and considered the possible application of relevant conditions and factors. He reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. 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. Accordingly, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for his 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 under 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board