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ISCR 12-11652.a1: Guideline F security clearance appeal, denied (2013) · CASE

ISCR Case 12-11652.a1denied

Case headnote

ISCR Case No. 12-11652.a1

Sep 12, 2013· Hon. Jeffrey D. Billett· appeal

Summary

A 56-year-old applicant was denied a security clearance under Guideline F (Financial Considerations) due to significant unresolved financial issues. The denial was based on the presence of five delinquent or charged-off debts, which collectively totaled $34,664.

The applicant's claims of having resolved these debts were not supported by adequate documentation. Specifically, there was no evidence provided to demonstrate that any of the debts had been paid, nor was there proof of participation in financial counseling.

Furthermore, the applicant failed to show any communication with creditors or attempts to negotiate payment plans for the outstanding amounts. This lack of demonstrated financial responsibility and failure to mitigate the concerns led to the denial of the security clearance.

Conditions referenced

Disqualifying

AG ¶ 19(a)raisedInability or Unwillingness to Satisfy Debts
AG ¶ 19(c)raisedA History of Not Meeting Financial Obligations

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 14, 2012
Answer filed—Applicant requested a decision on the written record.
Hearing heldJun 27, 2013
Decision dateSep 12, 2013

Cite for

Insufficient Documentation of Financial Responsibility Under Guideline F
Importance of Evidence in Mitigating Financial Concerns
Affirmation of Unfavorable Decisions Based on Lack of Evidence of Debt Resolution

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 concerns under Guideline F. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding substantial evidence supporting the denial and noting that new evidence submitted on appeal could not be considered.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMark Harvey denied the clearance

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.

Why the Board ruled this way

The Board found that the Judge's conclusions regarding the disqualifying conditions under Guideline F were supported by substantial evidence and that the applicant failed to provide sufficient evidence to mitigate the concerns raised.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

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: The Government presented substantial evidence of Guideline F concerns in Applicant’s case. We cannot consider new evidence on appeal. Adverse decision affirmed. CASE NO: 12-11652.a1 DATE: 09/12/2013 DATE: September 12, 2013 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-11652

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. 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). The SOR is undated. DoD sent the SOR to Applicant accompanied by a letter dated November 14, 2012. Applicant requested that the case be decided on the written record. On June 27, 2013, after the close of the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Mark Harvey denied Applicant’s request for a security clearance. Applicant appealed, pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable security clearance decision. The Judge found: Applicant is 56 years old. His SOR lists five delinquent or charged-off debts, totaling $34,664. He denied the SOR allegation at 1(a), which was an $867 debt to a private company. Applicant claimed the debt was paid. The remaining debts were the federal tax liens, regarding which Applicant stated, “I admit because I cannot categorically deny.” Decision at 3. He indicated that he had been in communication with the IRS regarding the debts, and they had not given him any information, including the specifics of the debts. He indicated that while awaiting communication from the IRS, he had increased his contributions to the U.S. Treasury as a good faith effort to resolve the debts if they remain unpaid. Applicant indicated he was unsure of the basis for the tax liens, but suggested that they related to an unpaid child support issue he believed had been resolved. In September 2012, Applicant indicated that he had contacted the IRS, and the IRS said it would be 30 to 45 days before he would hear from an IRS agent. There is no evidence of financial counseling. There is no documentary evidence of any payments to SOR creditors, correspondence to or from creditors, or debt disputes. There is no evidence of progress resolving his SOR debts. Applicant did not provide any response to the government’s File of Relevant Material. The Judge concluded: The record establishes Applicant has five delinquent or charged-off debts, totaling $34,664. The Government established the disqualifying conditions in AG ¶¶ 19(a)1 and 19(c).2 Applicant’s conduct in resolving his delinquent debt does not warrant full application of any mitigating conditions to all of his SOR debts. He did not provide any documentation proving that he paid the debt he asserts has been paid. There is no evidence of financial counseling, payments to SOR creditors, correspondence to or from creditors, or debt disputes. There is no evidence of progress resolving his SOR debts. He did not provide documentation proving that he maintained contact with his SOR creditors, and he did not provide any documentation showing his attempts to negotiate payment plans with his SOR creditors. There is insufficient evidence that his financial problem is being resolved and is under control. He did not establish his financial responsibility. More documented financial progress is necessary to fully mitigate security concerns. Applicant argues that his financial difficulties do not raise unmitigated questions about his reliability, trustworthiness and ability to protect classified information. He asserts that his failure to establish financial responsibility is more of a misunderstanding than poor judgment, and that he is attempting to resolve the concerns. He states that he is capable of understanding and taking reasonable actions to resolve his financial issues. Applicant argues that the behavior happened so long ago and is so infrequent, that it is unlikely to recur.3 Applicant’s assertions do not establish error on the part of the Judge. A review of the record and the Judge’s decision indicates that the Judge’s conclusion that Guideline F disqualifying conditions apply is supported by substantial evidence. Concerning mitigation, the Judge noted that Applicant had failed to provide any documentary evidence that one of the debts had been paid, that he had undergone financial counseling, that he had made any payments on his overdue debts, or that there had been any correspondence or contact or attempts to negotiate payment plans between Applicant and his creditors. Given the paucity of evidence provided by Applicant relating to efforts to address his debts, the Judge’s conclusion that Guideline F mitigating conditions did not apply is sustainable. Applicant states that he has filed a Freedom of Information Act request to obtain documentation regarding the IRS liens. He submitted documentation of debt resolution with his appeal brief. He also indicated that he has filed a dispute for the non-IRS debt alleged in the SOR. These are new matters not contained in the record, which the Board cannot consider. See Directive ¶ E3.1.29. (“No new evidence shall be received or considered by the Appeal Board”). 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. See, e.g., ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). “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 ultimate unfavorable security clearance decision 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: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board

FOOTNOTES

1 “[I]nability or unwillingness to satisfy debts[.]”

2 “[A] history of not meeting financial obligations[.]”

3 Applicant’s statement appears to be making reference to Guideline F Mitigating Condition ¶ 20(a), “[T]he behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment[.]”