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ISCR Case 12-11097.a1 — CASE

ISCR Case 12-11097.a1denied

Case Headnote

ISCR Case No. 12-11097.a1

Jun 20, 2013· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied clearance under Guideline E (Personal Conduct) and Guideline F (Financial Considerations) due to significant outstanding debts and a history of not meeting financial obligations. The judge identified disqualifying conditions related to the applicant's financial conduct and personal responsibility.

Specifically, the applicant had a lengthy history of unpaid debts, including substantial state and Federal tax liens, as well as past-due mortgage payments. While the applicant claimed to be making reasonable efforts to resolve these issues, the judge found that these efforts were recent and involved only token payments, failing to demonstrate sufficient progress.

Ultimately, the judge concluded that the applicant's financial problems were ongoing and not adequately mitigated, despite the application of some mitigating conditions. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe judge found that the applicant's recent efforts to resolve debts were insufficient to mitigate ongoing financial issues.
AG ¶ 17notedPersonal Conduct

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 27, 2012
Answer filednull
Hearing heldMar 29, 2013after the close of the record
Decision dateJun 20, 2013

Cite For

Denial of Security Clearance Due to Ongoing Financial Issues Under Guideline F
Insufficient Mitigation of Financial Problems Despite Recent Efforts
The Standard for Granting Clearance Must Align with 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 a denial of a security clearance based on financial considerations and personal conduct. The applicant argued that the Judge's decision was arbitrary and capricious, claiming he had made reasonable efforts to resolve his debts. The Board affirmed the Judge's decision, stating that the evidence supported the conclusion that the applicant's financial problems were ongoing and that the Judge's findings were not arbitrary or contrary to law.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowThomas M. Crean — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

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 decision was supported by substantial evidence and that the Judge properly weighed the evidence presented, concluding that the applicant's financial issues were ongoing and not sufficiently mitigated.

Standard of review applied

No de-novo re-decisionNo new evidence on appealSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural compliance

Appeal Board panel

Michael Y. 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; Guideline E DIGEST: The Appeal Board cannot consider new evidence on appeal. Applicant’s significant outstanding debts supported the Judge’s conclusion that the debts were ongoing. Adverse decision affirmed. CASE NO: 12-11097.a1 DATE: 06/20/2013 DATE: June 20, 2013 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) )

ISCR Case No. 12-11097

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 27, 2012, 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). On December 11, 2012, DoD issued an addendum to the SOR adding two additional allegations under Guideline F, and five allegations under Guideline E (Personal Conduct). Applicant requested a hearing. On March 29, 2013, after the close of the record, Defense Office of Hearings and Appeals Administrative Judge Thomas M. Crean 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’s adverse decision should be reversed because the evidence was sufficient to establish that he had been making reasonable efforts to resolve his financial problems. As part of his submission on appeal, he offers new evidence in the form of documents and a narrative statement that explain the current status of his debts and his continuing actions to resolve them. The Board cannot consider this new evidence on appeal. See Directive ¶ E3.1.29. 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, including substantial unpaid debts for state and Federal tax liens, and past-due mortgage payments. Decision at 2-5. Although Applicant had made some efforts to resolve his financial problems, the Judge noted that those efforts had only started recently and in some instances only involved token payments. Id. At 7-8. At the time the case was submitted for decision, Applicant still had significant outstanding debts and was still trying to resolve his financial problems.1 In light of the foregoing, the Judge could reasonably conclude that those problems were still ongoing. See, e.g., ISCR Case No. 10-01209 at 2 (App. Bd. Apr. 28, 2011). The Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct 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 Y. Ra’anan Michael Y. 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

FOOTNOTES

1 Applicant’s brief states that he “needed more time.” The Board notes that at the hearing he stated that he was ready to proceed (Tr. at 6-7), and the Judge accepted additional documents from Applicant about six weeks after the hearing.