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ISCR Case 12-03415.a1 — CASE

ISCR Case 12-03415.a1denied

Case Headnote

ISCR Case No. 12-03415.a1

Jul 25, 2014· Hon. Michael Y. Ra'anan· appeal

Summary

A former military service member was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The applicant had substantial delinquent debts, including judgments and various credit obligations. These financial issues were compounded by his failure to disclose charged-off debts and collection accounts on his security clearance application.

Further contributing to the denial was the applicant's past felony conviction for Grand Larceny. This conviction was seen as indicative of a pattern of financial misconduct and poor judgment, raising additional security concerns.

The judges concluded that the applicant failed to mitigate the security concerns raised by both his financial situation and his deliberate omissions, as well as his criminal history. Consequently, the denial of his security clearance was affirmed.

Conditions Referenced

Disqualifying

AG ¶ 19raisedCriminal Conduct
AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 20(d)rejectedThe Individual Has Made a Good Faith Effort to Repay Overdue Creditors or Otherwise Resolve Debts.The applicant failed to provide evidence of a good faith effort to resolve his debts.
AG ¶ 20(c)rejectedThe Conditions That Resulted in the Financial Problem Were Largely Beyond the Person's Control.The applicant did not demonstrate that his financial issues were beyond his control.

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 heldMay 9, 2014
Decision dateJul 25, 2014

Cite For

Failure to Mitigate Financial Concerns Under Guideline F
Deliberate Omissions in Security Clearance Applications Under Guideline E
Impact of Past Criminal Conduct on Current Security Clearance Evaluations

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 an Applicant seeking a security clearance after being denied due to financial considerations and personal conduct issues. The Applicant argued that the Judge's findings were erroneous and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful errors in the findings or conclusions.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDarlene D. Lokey Anderson — denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge ignored evidence favorable to him regarding his financial situation.
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 findings were supported by substantial evidence and that the Applicant failed to demonstrate any harmful error in the Judge's decision. The Judge's conclusions regarding the Applicant's financial issues and personal conduct were deemed reasonable and consistent with the evidence presented.

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 Ra’anan — Chair
William S. Fields
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; Guideline E DIGEST: In evaluating an Applicant’s mens rea, we consider omissions and false statements in light of the record as a whole. Adverse decision affirmed. CASENO: 12-03415.a1 DATE: 07/25/2014 DATE: July 25, 2014 In Re: --------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-03415

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) and Guideline E (Personal Conduct) of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On May 9, 2014, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Darlene D. Lokey Anderson 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’s 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 served on active duty with the U.S. military from 1979 to 1983. After that he worked for several employers before starting work for his current employer in 2007. He has held a clearance from his current employer since 2010. Applicant has substantial delinquent debt. His debts include two judgments entered against him in favor of banks as well as various credit card and consumer debts and a debt for medical expenses. He provided no explanation for his financial problems. He hired a debt management service to negotiate on his behalf with his creditors. He began receiving collection notices from his creditors, which alerted him to the fact that his financial service was not addressing his problems. In August 2013 he sent each of his creditors a letter with a settlement offer. Some have responded, and some have not. He has failed to submit other evidence to show that he has started making payments toward his debts, such as receipts, settlement agreements, cancelled checks, or a new credit bureau report showing final payment. In preparing his security clearance application (SCA), Applicant failed to disclose any of his charged-off debts, collection accounts, or debts delinquent more than 120 days. He claimed that, at the time he completed his SCA, he did not know his financial problems were as serious as they were. He believed that the debt management service was addressing them. He also stated that at the time he completed the SCA he had received no notices from creditors. In November 2003, Applicant was in a serious financial crisis due to student loans and other bills. He and a fellow worker, both part-time security guards, stole a video projector from their work site for the purpose of selling it or using it as collateral for a loan. Applicant pled guilty to one count of Grand Larceny, a felony. He was sentenced to probation, community service, and restitution. He has completed all aspects of his sentence. The Judge’s Analysis The Judge concluded that Applicant had failed to mitigate the Guideline F concerns in his case. She stated that he had not started the process of debt resolution. Noting his evidence that his debt management service may have exacerbated his problems, she nonetheless stated that Applicant has done little since then. Under Guideline E, she concluded that Applicant’s omissions were deliberate. She stated that at the time he completed his SCA he knew or should have known of his debt problems. Evidence that he had hired the debt management service demonstrates that, at the time of his SCA, he was aware of significant problems with his finances. She also noted that in 2003 Applicant had committed a felony in order to obtain funds to pay off debts. She concluded that little had changed in the years since and that the financial pressures that underlay Applicant’s decision to commit the crime were still present in his life. She further concluded that Applicant had not mitigated the concerns in his case.

DISCUSSION

Applicant takes issue with some of the Judge’s findings. He denies that his omissions from the SCA were deliberate. He challenges her finding that he has worked with his current employer since 2007. He also disagrees that he owes the medical debt. We examine a Judge’s findings to see if they are supported by substantial record evidence, “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” Directive ¶ E3.1.32.1. See also ISCR Case No. 11-00970 at 2 (App. Bd. Feb. 28, 2012). In evaluating an applicant’s mens rea, we consider his omissions or false statements in light of the record as a whole. See, e.g., ISCR Case No. 12-12172 at 3 (App. Bd. Jan. 9, 2014). The Judge’s analysis of Applicant’s omissions relied in large measure on evidence of his agreement with the debt management service. Her conclusion that this agreement demonstrates an awareness of significant debt problems is supportable. We also note her comment that Applicant had experienced financial problems for many years and had even committed a felony to raise money for debt payment in 2003, which also undermines Applicant’s contention that he was unaware of the extent of his problems. Concerning the medical debt, in his Response to the SOR Applicant admitted that he owed the debt. In his Answers to Interrogatories he stated that he intended to contact the creditor. His answer on this matter did not deny the legitimacy of the debt. Item 11 at p. 12. The Judge’s finding that Applicant began working for his current employer in 2007 appears to be an error. In fact, Applicant’s SCA lists several employers since that year. However, there is no reason to conclude that this error affected the outcome of the case. The Judge’s material findings of security concern are based upon substantial record evidence. Applicant has cited to no harmful error in the Judge’s findings. Applicant argues that his conviction occurred a long time ago and should not be considered a problem, especially in light of the fact that it was addressed in an earlier adjudication. The Government is not precluded from making an adverse decision despite prior favorable ones. See, e.g., ISCR Case No. 11-14570 at 3 (App. Bd. Oct. 23, 2013). This is especially true in cases such as this, in which subsequent conduct, such as Applicant’s delinquent debts and deliberate omissions, raise additional concerns about his security worthiness. Applicant contends that information in the record is outdated, undermining the Judge’s conclusions about his future possible conduct. He made a similar contention in his Response to the FORM and provided some information that he believed would be of relevance in evaluating his case. It should be noted that the Government bears no burden of production regarding allegations that have been admitted. An applicant bears the burden of persuasion as to mitigation. See, e.g., ISCR Case No. 11-04088 at 3 (App. Bd. Jan. 29, 2013). Directive ¶ E3.1.15. If Applicant possessed additional evidence that would have illuminated the current state of his finances beyond what was reflected in his admissions to the SOR and in other documents, it was his task to provide it. He has cited to evidence that he believes favorable to him, such as his plan to address his current debts before resolving his delinquent ones. To the extent that he is arguing that the Judge did not consider this evidence or that she mis-weighed it, he has not rebutted the presumption that the Judge considered all of the evidence in the record. Neither has he demonstrated that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g, ISCR Case No. 12-12172 at 3, supra.

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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board