CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 12-09279 — CASE

ISCR Case 12-09279denied

Case Headnote

ISCR Case No. 12-09279

Feb 5, 2016· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance was denied under Guideline F (Financial Considerations) for an applicant representing herself. The denial was primarily based on approximately $134,000 in delinquent debts, largely stemming from student loans.

The appeal board affirmed the denial, citing the applicant's failure to provide evidence of payments made under her Chapter 13 bankruptcy plan. Furthermore, the applicant did not demonstrate that her significant financial issues were caused by circumstances beyond her control.

Consequently, the applicant was unable to mitigate the security concerns raised under Disqualifying Condition AG ¶ 20(a), leading to the final denial of her security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedFinancial 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 issuedDec 8, 2014
Answer filed—Applicant represented herself (pro se) in the proceedings.
Hearing heldNov 21, 2015
Decision dateFeb 5, 2016

Cite For

Failure to Mitigate Financial Issues Under Guideline F
Due Process Considerations in Security Clearance Proceedings
Burden of Persuasion Lies with the Applicant in Clearance Cases

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 who was denied a security clearance due to financial considerations under Guideline F. The applicant argued that she was denied due process and that the Judge's decision was arbitrary. The Board affirmed the decision, finding no harmful error in the Judge's ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowNoreen A. Lynch — 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 because she was unaware that she needed to respond to the FORM.
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 applicant was not denied due process as she was adequately informed of her rights and responsibilities regarding the FORM. The Judge's decision was supported by substantial evidence and was not arbitrary or capricious.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealBurden of persuasion

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: Applicant appears to argue that she was unaware that she should respond to the FORM. The Board concludes she was not denied due process because she was advised in writing of her opportunity to submit documents demonstrating objection, rebuttal, mitigation, extenuation or explanation. Adverse decision affirmed. CASENO: 12–09279.a1 DATE: 02/05/2016 DATE: February 5, 2016 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-09279

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 December 8, 2014, 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 November 21, 2015, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Noreen A. Lynch 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 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’s SOR lists delinquent debts that total about $134,000, the majority of which are for student loans. In 2013, Applicant filed a Chapter 13 bankruptcy petition, listing over $116,000 in liabilities, including $2,000 in Federal taxes. In her answer to the SOR, Applicant acknowledged her debts, stating that she had overextended herself. She also states that this situation will not recur because of her bankruptcy plan, which will be completed in 2018. Applicant did not provide evidence that she had paid any of the required monthly payments of $706. On her 2012 security clearance application, Applicant stated that her wages were being garnished for student loans from 1997. There is no record evidence as to the circumstances that caused Applicant’s financial difficulties. Applicant’s credit reports list debts that are not included in her bankruptcy petition, and the status of these debts is not clear. The Judge’s Analysis In concluding that Applicant had not mitigated the concerns arising from her delinquent debts, the Judge stated that there is no evidence of any payments. Additionally, Applicant provided no evidence that her problems were caused by circumstances that were outside her control, nor did she demonstrate responsible action in regard to them. The Judge noted her finding that Applicant had not supplied evidence of any payment under her bankruptcy plan. She also noted her finding that Applicant has other debts that are not addressed in her bankruptcy.

DISCUSSION

Applicant states that from reading the paperwork she received that she needed only to be truthful in her presentation, which she claims she was. We construe this as an argument that she did not know that she needed to make a response to the File of Relevant Material (FORM) and, therefore, did not receive due process. The FORM advised Applicant that the record as it then stood contained no documentary proof of payments under her bankruptcy plan, nor did it contain evidence of the circumstances that caused her debts. The FORM stated to Applicant that she had “30 days in which to submit a documentary response setting forth objections, rebuttal, extenuation, mitigation or explanation as appropriate.” It also stated that if she did not provide a response the Judge would make a decision based solely on the FORM that Applicant received. DOHA provided Applicant similar guidance in the cover letter that accompanied the FORM, and DOHA also sent her a copy of the Directive, with its explanation of her rights and responsibilities about responding to the FORM. In a DOHA proceeding, the applicant bears the burden of persuasion that he or she should have a clearance. Directive ¶ E3.1.15. Under the circumstances, Applicant’s failure to have provided a written response to the FORM cannot fairly be attributed to an absence of clear guidance regarding her rights. Applicant was not denied the due process afforded by the Directive. Applicant cites to her SOR answer concerning her bankruptcy filing. She states that, had she submitted her attorney’s name and phone number, her case would have turned out differently. However, even if she had provided her attorney’s contact information, the Judge was not authorized to conduct additional inquiry, which would have conflicted with her duty to serve as an impartial fact-finder. See, e.g., ISCR Case No. 14-03062 at 3 (App. Bd. Sep. 11, 2015). As stated above, Applicant bore the responsibility for presenting evidence in mitigation. As it stands, Applicant’s argument is not enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-06440 at 4 (App. Bd. Jan. 8, 2016). Applicant states that she is missed at her job. The Directive does not permit us to consider the impact that an adverse decision might have on an applicant. See, e.g., ISCR Case No. 14-04202 at 4 (App. Bd. Dec. 24, 2015). 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 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