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ISCR Case 12-10072.a1 — CASE

ISCR Case 12-10072.a1denied

Case Headnote

ISCR Case No. 12-10072.a1

Jul 10, 2015· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline F (Financial Considerations) due to a history of financial irresponsibility. The denial was based on disqualifying conditions F1 and F3, citing a lengthy history of unpaid debts and a failure to file both Federal and state income tax returns for multiple years.

While mitigating conditions F2 and F3 were considered, the applicant's financial problems were deemed ongoing and serious. The appeal board upheld the denial, concluding that the judge's decision was supported by substantial evidence.

Ultimately, the applicant's mitigating evidence did not outweigh the significant financial concerns, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

F1raisedInability or Unwillingness to Satisfy Debts
F3raisedDelinquent Accounts

Mitigating

F2rejectedThe Conditions That Resulted in the Financial Problems Were Largely Beyond the Person's ControlThe judge found that the applicant's financial issues were ongoing and serious.
F3rejectedThe Person Has Made a Good Faith Effort to Repay Overdue Creditors or Otherwise Resolve DebtsThe judge noted that the applicant's efforts were motivated primarily by the need for a security clearance.

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 issuedNov 21, 2014
Answer filed—
Hearing heldApr 28, 2015
Decision dateJul 10, 2015

Cite For

Upholding Denial Based on Serious Financial Issues Under Guideline F
Importance of Substantial Evidence in Security Clearance Decisions
Limitations on New Evidence During Appeal Process

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 who was denied due to financial considerations under Guideline F. The Applicant argued that the Judge's decision was arbitrary and did not adequately consider mitigating evidence. The Board affirmed the Judge's decision, finding it supported by substantial evidence and not arbitrary or capricious.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowLeRoy F. Foreman — 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 clearance 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, capricious, or contrary to law. The Board also noted that any errors alleged by the Applicant were deemed harmless and did not affect the outcome of the case.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Michael Ra’anan — Chair
Jean E. Smallin
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: The hearing was Applicant’s opportunity to produce mitigating and other favorable evidence and he took advantage of that opportunity. The Board cannot consider new evidence produced on appeal. Adverse decision affirmed. CASENO: 12-10072.a1 DATE: 07/10/2015 DATE: July 10, 2015 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-10072

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 November 21, 2014, 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 April 28, 2015, after the hearing, Defense Office of Hearings and Appeals Administrative Judge LeRoy F. Foreman denied Applicant’s request for a security clearance. Applicant timely 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 erred in characterizing the status of four of the eighteen debts listed in the Statement of Reasons (SOR). With respect to two of those debts, the Judge found in favor of the Applicant. As to the other two debts, the Judge’s findings constitute a reasonable interpretation of the record that was before him. Even if erroneous, they are not likely to have affected the outcome of the case. Therefore, any error is harmless. Considering the record evidence as a whole, the Judge’s material findings of security concern are supported by substantial evidence and are sustainable. See, e.g., ISCR Case No. 08-12167 at 2 (App. Bd. Jul. 16, 2010). Applicant also contends that although the Judge based his decision on the data that was provided to him, that data did not show what Applicant had been going through during the time periods in which he had incurred his indebtedness. Applicant includes a narrative statement about those circumstances as part of his brief. Applicant’s Brief at 2. The Board cannot consider this new evidence on appeal. See Directive ¶ E3.1.29. The hearing was the Applicant’s opportunity to produce other evidence beyond that developed by his background investigation for the purpose of rebutting, explaining, extenuating, or mitigating facts to which he has admitted or which have been proven by Department Counsel. See, e.g., Directive ¶ E3.1.15. Applicant also took advantage of the option to submit evidence after the hearings, including a five page letter to the Judge (App. Ex. G). Finally, Applicant contends that the Judge did not give sufficient weight to his evidence of mitigation. In that regard, he argues that even though he just stated his repayment plan for his Federal tax debt in March 2015 and has a short payment history, he has not missed a payment. He also notes that he is almost finished paying off his state tax debt. Applicant’s arguments are not sufficient to establish that the Judge’s decision is arbitrary, capricious or contrary to law. 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. 10-08308 at 2 (App. Bd. Nov. 3, 2011). In this case, the Judge found that Applicant had a lengthy history of not meeting financial obligations. He had failed to file Federal and state income tax returns for 2008 through 2011, and his three largest debts had been collected by involuntary garnishment. Decision at 2, 3 and 7. Although Applicant had made some efforts to resolve his financial problems, the Judge noted that those efforts were recent, “motivated primarily by his need for a security clearance rather than a sense of duty or obligation,” and demonstrated “little grasp of his overall financial situation.” Id. at 7. Accordingly, the Judge could reasonably conclude that Applicant’s financial problems were ongoing. 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 with respect to some of the allegations, but reasonably explained why the mitigating evidence was insufficient to overcome all of the government’s security concerns. The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for his decision. “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). Therefore, the Judge’s unfavorable security clearance decision under is sustainable.

ORDER

The decision of the Judge is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board