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ISCR Case 12-10810.a1 — CASE

ISCR Case 12-10810.a1denied

Case Headnote

ISCR Case No. 12-10810.a1

Jul 12, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A 50-year-old defense contractor and military veteran was denied a security clearance under Guideline F (Financial Considerations). The denial stemmed from approximately $550,000 in outstanding debts. The judge found against the applicant on six specific debts, concluding that no evidence was presented to demonstrate efforts to resolve these financial obligations.

The judge determined that none of the mitigating conditions under Guideline F applied to the six debts in question. While the applicant had a dismissed bankruptcy, this was found in his favor and did not outweigh the unresolved debts.

The applicant's appeal was subsequently denied because he failed to identify any harmful errors in the judge's initial decision. The clearance was ultimately denied due to the applicant's failure to address the significant overdue debts.

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 2, 2015
Answer filed—Applicant requested a decision on the written record.
Hearing heldApr 27, 2016
Decision dateJul 12, 2016Appeal affirmed by the Appeal Board.

Cite For

Failure to Demonstrate Efforts to Resolve Financial Debts Under Guideline F
Impact of a Dismissed Bankruptcy on Security Clearance Decisions
Standard for Granting Security Clearances Related to National Security Interests

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 the Department of Defense denied it based on financial considerations under Guideline F. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful error in the Judge's ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMartin H. Mogul — denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

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.

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 no harmful error in the Judge's decision and affirmed the denial of the security clearance. The Judge provided a satisfactory explanation for the decision based on the evidence presented.

Standard of review applied

Harmful-error gatekeeperNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael Ra’anan — Chair
William S. Fields
James F. Duffy

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’s appeal has failed to identify any harmful error. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. Adverse decision affirmed. CASE NO: 12-10810.a1 DATE: 07/12/2016 DATE: July 12, 2016 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-10810

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 2, 2015, 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 27, 2016, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Martin H. Mogul denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30 Applicant raised the following issue on appeal: whether the Judge’s decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact and Analysis Applicant is a 50-year-old employee of a defense contractor. He is married and has three adult children. He served in the U.S. military from 1987 to 2008. The SOR alleged a dismissed bankruptcy in 2010 and overdue debts totaling approximately $550,000. The Judge found in favor of Applicant on the bankruptcy allegation and three of the alleged debts, including a mortgage deficiency of about $528,000. He found against Applicant on the six remaining debts. Regarding those six debts, the Judge noted Applicant presented no evidence to show that, since the SOR was issued, he contacted any of the creditors, made any payment plans, or resolved or reduced any of those overdue debts. The Judge concluded none of the mitigating conditions applied to those six debts.

DISCUSSION

In the appeal brief, Applicant states that he did not receive Items 4 and 5 that were referenced in the decision. Items 4 and 5 were credit reports attached to Department Counsel’s File of Relevant Material (FORM). We note that it is common practice for Department Counsel to identify documents attached to a FORM as “Items.” Likewise, Judges in their decisions often refer to those attachments as “Items.” In this case, however, Department Counsel in the narrative portion of the FORM did not refer to the attached documents as “Items,” but instead referred to them as “Evidence.”1 On the other hand, the Judge in his decision referred to those attachments as “Items.” This difference in terminology for identifying the FORM attachments may have confused Applicant, and he may not have been aware of what the Judge was referring to when he used the term “Items.” Even if Applicant did not receive Items 4 and 5, we find no harmful error. On September 15, 2015, a copy of the FORM was mailed to Applicant. He received it on September 29, 2015. He was informed that the FORM contained relevant information that will be submitted to an administrative judge to make a determination in his case. He was given 30 days from receipt of the FORM to review the file, submit any objections, and provide additional information that he wished to be considered. He submitted a response to the FORM on October 21, 2015. In that response, he did not indicate any of the documents listed in the FORM were missing. His response included a copy of the narrative portion of the FORM, which included a list of the attached documents.2 If he did not receive documents attached to the FORM, he was provided an opportunity to request those documents and correct that error. By failing to take such action, he cannot now complain that he was harmed. 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. 1 In the record, the documents attached to the FORM were stamped as “Item # ” and appropriately numbered. 2 In his response to the FORM, Applicant did not submit the documents that were attached to the FORM. 12-02371 at 3 (App. Bd. Jun. 30, 2014). Applicant has not established that he was denied his rights under the Directive. In his response to the FORM, Applicant referred to a credit report dated October 21, 2015, to support his claims about various debts. In his appeal brief, he noted that he mistakenly did not attach that credit report to his response to the FORM. His failure to submit that credit report does not constitute harmful error by the Judge and warrants no relief on appeal. See, Directive ¶ E3.1.32. In his appeal brief, he provided a new credit report in support of his claims. This credit report constitutes new evidence that the Board can neither receive nor consider. See Id. ¶ E3.1.29. Applicant’s appeal has failed to identify any harmful error. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on the 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 case 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 F. Duffy James F. Duffy Administrative Judge Member, Appeal Board