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ISCR Case 12-02590.a1 — CASE

ISCR Case 12-02590.a1denied

Case Headnote

ISCR Case No. 12-02590.a1

May 8, 2014· Hon. Jeffrey D. Billett· appeal

Summary

A defense contractor was denied a security clearance under Guideline F, Financial Considerations, due to over $47,000 in delinquent debt. This debt primarily stemmed from business-related expenses and unpaid taxes. The Appeal Board affirmed the denial, citing the applicant's failure to present sufficient evidence of mitigating circumstances.

Specifically, the applicant had over $47,000 in delinquent debt, with only one payment corroborated. The applicant also failed to demonstrate that these financial issues were due to circumstances beyond his control. Furthermore, a credible plan for addressing the outstanding debts was not provided.

The Appeal Board concluded that the applicant did not adequately address the disqualifying conditions raised under AG ¶ 20, and the mitigating conditions under AG ¶ 21 were not sufficiently met. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe applicant did not demonstrate sufficient evidence of mitigating circumstances.

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 issuedSep 11, 2013
Answer filed—
Hearing heldJan 31, 2014
Decision dateMay 8, 2014

Cite For

Insufficient Evidence of Mitigating Circumstances Under Guideline F
Importance of Financial Responsibility in Relation to National Security
Limitations on Considering New Evidence During Appeal

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 filed by the applicant after the DoD denied his request for a security clearance based on financial considerations under Guideline F. The applicant challenged the Judge's findings and the adverse decision. The Appeal Board affirmed the decision, finding no harmful error in the Judge's ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJohn Grattan Metz, Jr. — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge erred in stating that he had a delinquent debt for a second mortgage.
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.

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 found that the Judge's findings were supported by substantial evidence and that the Judge's decision was not arbitrary or capricious. The Board also noted that any error regarding the second mortgage was harmless and did not affect the outcome.

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: The Appeal Board cannot consider new evidence on appeal. Adverse decision affirmed. CASENO: 12-02590.a1 DATE: 05/08/2014 DATE: May 8, 2014 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-02590

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 September 11, 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 January 31, 2014, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge John Grattan Metz, Jr., 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 the Judge findings of fact contained errors and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant has been employed by a Defense contractor since 2011. He has not previously held a security clearance. Applicant has over $47,000 in delinquent debt, nearly $35,000 of which is for building materials he purchased through his roofing business for the construction of his house. The mortgage he obtained for the house was not enough to cover all of the building costs. The other debts pertain to delinquent state and Federal employment taxes and a second mortgage on his house. Applicant states that he is paying $300 a month on the building materials debt, but he corroborated only one such payment. He has made no payments on any of the other debts. His financial statement shows that, except for the $300 monthly payment, he lacks the means to address his debts. He attributes his financial problems to the failure of his business and to a brief period of unemployment. He has been continuously employed since August 2010. He did not corroborate his claim to have been injured on the job six months after starting up his business. By the time he was able to return to work, the country was experiencing an economic downturn, which affected his business. He has not received any financial or credit counseling. The Judge’s Analysis The Judge concluded that Applicant had not mitigated the concerns arising from his financial difficulties. He cited to evidence that these difficulties are recent and multiple and stated that Applicant had failed to demonstrate that they resulted from circumstances outside his control. He stated that Applicant had provided evidence of only one payment in satisfaction of the building materials debt, and that Applicant had not demonstrated a plan for addressing the totality of his debts. He said that Applicant appears to have disregarded his financial obligations for many years.

DISCUSSION

Applicant challenges some of the Judge’s findings of fact. Among other things, he argues that the Judge erred in stating that he had a delinquent debt for a second mortgage. We evaluate a Judge’s findings to see if they are supported by substantial record evidence. See, e.g., ISCR Case No. 11-13948 at 3 (App. Bd. Feb. 26, 2014). Applicant’s SOR contained four allegations. One was for the debt for building materials, two were for tax debts, and the final one was a collection account owed to a bank in the amount of $4,098. We have found nothing in the record to show that this last debt was for a delinquent second mortgage. Applicant admitted the allegation, describing it as a business debt. The Judge’s finding is not supported by the record, although, even if he had not made the error, there is no reason to believe that he would have decided the case differently. Therefore, it is harmless. Beyond that, the Judge’s material findings are supported by substantial evidence or constitute reasonable inferences from the evidence. In support of his appeal, Applicant has submitted evidence from outside the record regarding additional payments for his building materials debt. We cannot consider new evidence on appeal. Directive ¶ E3.1.29. The Judge examined the relevant data and articulated a satisfactory explanation for the decision. Viewed in light of the totality of the evidence ,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: Jeffery D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board