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ISCR 12-02371.a1: Guideline F security clearance appeal, denied (2014) · CASE

ISCR Case 12-02371.a1denied

Case headnote

ISCR Case No. 12-02371.a1

Jun 30, 2014· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, representing herself, was denied under Guideline F (Financial Considerations) due to significant delinquent debts totaling approximately $26,000. The appeal board affirmed this denial, citing the applicant's failure to provide evidence of resolving any of these debts.

Specifically, the applicant did not demonstrate any efforts to contact creditors, seek debt assistance, or otherwise mitigate her financial issues. No character references were provided to support her case. The board concluded that the applicant was adequately informed of her rights and responsibilities regarding her financial situation but failed to meet the conditions for a clearance.

The denial was based on the applicant's outstanding delinquent debts and the absence of any documented steps taken to address or resolve them, leading to the application of Disqualifying Condition AG ¶ 20.

Conditions referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

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 issuedJul 16, 2013
Answer filed—Applicant represented herself (pro se) in the proceedings.
Hearing heldApr 14, 2014
Decision dateJun 30, 2014Appeal board affirmed the denial.

Cite for

Failure to Mitigate Financial Delinquencies Under Guideline F
Applicant's Burden of Production and Persuasion in Financial Matters
Due Process Considerations in Security Clearance Proceedings

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 denial of her security clearance based on financial considerations under Guideline F. The applicant raised issues regarding due process, factual findings, and the Judge's decision being arbitrary or capricious. The Board affirmed the decision, finding no harmful errors in the Judge's findings or procedures.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowShari Dam denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Due-process / fairness, raised by the applicantRejected
Applicant argued that she was denied due process regarding her responsibilities to respond to the FORM.
Erroneous finding of fact, raised by the applicantRejected
Applicant challenged the Judge's findings about her monthly income and expenses.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argued that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's material findings were supported by substantial evidence and that the applicant received reasonable notice of her rights and responsibilities. The applicant did not provide sufficient evidence to mitigate the financial concerns raised against her.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael 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: Applicant received reasonable notice of her right to submit evidence in response to the File of Relevant Material. The Judge’s material findings are supported by substantial evidence. The Board cannot consider new evidence on appeal. Adverse decision affirmed. CASE NO: 12-02371.a1 DATE: 06/30/2014 DATE: June 30, 2014 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-02371

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 July 16, 2013, 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 April 14, 2014, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Shari Dam 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 she was denied due process; whether the Judge’s findings contained errors; and whether the Judge’s 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 had delinquent debts totaling about $26,000. These debts ranged from $86 to nearly $8,000. None of these debts have been paid or resolved. Applicant submitted no evidence that she had contacted any of her creditors, sought the assistance of a debt consolidation company, or disputed any of her debts. Applicant’s annual salary is over $45,000. She has a net monthly income of $3,751. After expenses and payment of ongoing debts, including a mortgage and car loan, she has a surplus of $63. She presented no evidence of financial counseling. Applicant provided no evidence of the quality of her job performance, her duties, or her history of compliance with security procedures. She submitted no character references. Applicant was unemployed from July 2004 to April 2005, as a consequence of which she became unable to pay her debts. She stopped paying them because she had no money. She stated that she would review her credit report to see if any of the debts were not hers. She also stated that she bought a house in 2007 and, after moving in, realized that she could not continue to pay all of her debts. Her credit card balances increased, and she stopped paying old debts. The Judge’s Analysis In evaluating Applicant’s case for mitigation, the Judge stated that Applicant had failed to provide evidence that she was resolving her debts or otherwise addressing her problems. Applicant presented no evidence that she had made an effort to pay her debts or dispute any of them. In the whole-person analysis, the Judge stated that Applicant had been on notice since a January 2012 clearance interview that her debts could result in adverse consequences to her. Even after she received the SOR and a copy of the File of Relevant Material (FORM) she took no action to resolve any of her debts. Moreover, she provided no response to the FORM. The Judge concluded that Applicant had not met her burden of persuasion as to mitigation.

DISCUSSION

Applicant states that she did not provide proof of debt payment because she was not advised that she should do so. We construe this as an argument that she was not apprised of her responsibilities to respond to the FORM, thereby denying her due process. In the FORM, Department Counsel notes Applicant’s claim that she had experienced unemployment in the past. He goes on to say that there “is no documentary evidence of any payments or steps taken to resolve any of the 15 alleged delinquent debts . . .” (emphasis in original) Department Counsel also stated the following: There is no evidence of efforts by [Applicant] to contact creditors, establish payment arrangements, and make payments. In fact, in her Answer to the Statement of Reasons, [Applicant] reveals no intent to repay any of these creditors . . . No clear explanation [has] been provided as to the origin of [Applicant’s] financial delinquencies. She has not provided any evidence of credit counseling or steps to reduce her monthly expenses. There is no evidence of any contacts with creditors or efforts to repay her delinquent debts. [Applicant] bears the burden to demonstrate that her financial indebtedness does not reflect poorly on her responsibility and judgment and that she is taking significant steps toward resolution . . . In summing up the Government’s position, Department Counsel asserted that [Applicant] has not yet provided documentation demonstrating that she is taking significant steps to resolve the 15 alleged delinquent debts, nor provided any explanation as to how the indebtedness occurred. There is no evidence that [Applicant] has taken steps to reduce her expenses or repay her delinquent debts. [Applicant] bears the burden of production and the burden of persuasion in mitigation. Department Counsel concluded by stating that Applicant had an opportunity to submit documentary information within thirty days of receipt of the FORM. Department Counsel’s guidance was clear and detailed as to the paucity of mitigating evidence regarding Applicant’s poor financial condition and also clear that Applicant bore the responsibility of providing such evidence. Moreover, DOHA sent the FORM to Applicant with a cover letter that stated that she had “an opportunity to review the attached copy of the complete file and submit any material [she wished] the Administrative Judge to consider or to make any objections [she] may have as to the information in the File.” The cover letter advised that Applicant had 30 days from receipt in which to submit her objections or additional information. The FORM and cover letter were accompanied by a copy of the Directive, which contains guidance as to an applicant’s rights and responsibilities in DOHA adjudications. Applicant signed a receipt for the package that included the cover letter, FORM, and Directive. Applicant received notice sufficient to apprise a reasonable person as to the kind of evidence that might mitigate the concerns arising from her delinquent debts and of her responsibility to provide such evidence. As the Judge noted, however, Applicant did not provide a response to the FORM. Although pro se applicants are not expected to act like lawyers, they are expected to take timely and reasonable steps to protect their rights under the Directive. See, e.g., ISCR Case No. 10- 03743 at 2 (App. Bd. Jun. 24, 2011). Applicant was not denied reasonable notice of her rights and obligations regarding mitigation. Applicant challenges the Judge’s findings about her monthly income and expenses. These findings are based upon the Personal Financial Statement that Applicant submitted in her response to DOHA interrogatories. Item 5 at 9. We find no error in the challenged findings. If Applicant believed that her Personal Financial Statement needed to be updated or explained it was her responsibility to provide such information. The Judge’s material findings of security concern are supported by substantial evidence. Applicant has not cited to any harmful error in the Judge’s findings. See, e.g., ISCR Case No. 11-12803 at 3 (App. Bd. Feb. 21, 2014). Applicant has submitted evidence not contained in the record. We cannot consider new evidence on appeal. See, e.g., ISCR Case No. 12-00703 at 2 (App. Bd. Feb. 27, 2014). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The 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). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

ORDER

The Decision is AFFIRMED. Signed: Michael Ra’anan Michael 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