CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 12-02373.a1 — CASE

ISCR Case 12-02373.a1denied

Case Headnote

ISCR Case No. 12-02373.a1

Jan 24, 2013· Hon. Jean E. Smallin· appeal

Summary

This security clearance application was denied under Guideline F (Financial Considerations) due to unresolved debts and a lack of demonstrated financial control. The applicant, representing himself, faced disqualifying conditions outlined in AG ¶ 20, while mitigating conditions from AG ¶ 21(a) and AG ¶ 21(c) were considered.

The administrative judge determined that the applicant had over $31,000 in outstanding debts, despite having successfully paid off four smaller obligations. A key factor in the denial was the applicant's inability to demonstrate that his financial issues were under control or that he had a viable plan to manage the remaining debts.

Ultimately, the judge concluded that the applicant's limited income made it improbable that the significant outstanding debts would be resolved. This assessment led to the denial of the security clearance, as the financial concerns outweighed the presented mitigating evidence.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21(a)rejectedThe Behavior Was Not RecentThe judge noted that while some debts were paid off, the remaining debts were significant and unresolved.
AG ¶ 21(c)rejectedThe Individual Has Received or Is Receiving Counseling for the ProblemThe applicant had not received formal financial counseling.

Key Rule Quoted

“Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.”

Procedural Posture

SOR issuedMay 11, 2012
Answer filed—
Hearing heldOct 24, 2012
Decision dateJan 24, 2013

Cite For

Burden of Persuasion on Applicant for Mitigation Under Guideline F
Insufficient Mitigating Evidence Does Not Compel a Favorable Decision
Judge's Discretion in Weighing Evidence and Making Decisions on Security Clearance

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 from an adverse security clearance decision based on financial considerations. The applicant argued that the decision was arbitrary and capricious due to his financial difficulties stemming from unemployment and his efforts to pay off debts. The Board affirmed the Judge's decision, finding that the applicant did not meet the burden of persuasion for mitigation.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowClaude R. Heiny — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended 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 articulated a satisfactory explanation for the decision, including a rational connection between the facts found and the choice made.

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

Jean E. Smallin
James E. Moody
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: A party’s disagreement with the Judge’s weighing of the evidence is not enough to demonstrate error. Once the Government presents evidence of security concern, the applicant bears the burden of persuasion as to mitigation. Adverse decision affirmed. CASE NO: 12-02373.a1 DATE: 01/24/2013 DATE: January 24, 2013 In Re: -------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-02373

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On May 11, 2012, DOHA 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 24, 2012, after the hearing, Administrative Judge Claude R. Heiny 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 issue on appeal: whether the Judge’s adverse clearance decision is arbitrary, capricious, or contrary to law. Applicant contends that the Judge’s adverse decision should be reversed because his financial difficulties could be traced to his and his wife’s unemployment, he had paid off four of his six debts prior to the issuance of the SOR, and he had favorable character and employment references. Applicant’s argument does not demonstrate that the Judge’s adverse decision is arbitrary, capricious or contrary to law.

Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. 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. 10-08508 at 2 (App. Bd. Jan. 4, 2012). In reaching his adverse decision, the Judge considered the circumstances referenced in Applicant’s appeal brief, including the fact that Applicant had paid off four of his six outstanding debts. However, he noted that the four paid off debts totaled less than $1,000, while the two remaining debts, which were attributable to the repossession of two vehicles, totaled more than $31,000. He also noted that Applicant had received no formal financial counseling, and he had not demonstrated that his financial problems were under control and that he had a plan to bring them under control. As a result, the Judge found that “[w]ith his limited income, the two debts are likely to remain unresolved.” Decision at 3,4,6, and 7. The Judge’s adverse conclusions in this regard are reasonably supported by the record evidence. 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 found in favor of Applicant as to the SOR allegations stemming from the four debts that had been paid off, but reasonably explained why that mitigating evidence was insufficient to overcome the government’s security concerns. Id. at 5-8. The Board does not review a case de novo. 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). The Judge’s unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board