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ISCR Case 14-00280.a1 — CASE

ISCR Case 14-00280.a1denied

Case Headnote

ISCR Case No. 14-00280.a1

Feb 13, 2015· Hon. Jeffrey D. Billett· appeal

Summary

A 37-year-old applicant was denied a U.S. security clearance under Guideline F, Financial Considerations, due to eight delinquent debts totaling approximately $31,500. The applicant admitted to these debts, which raised disqualifying conditions under Adjudicative Guideline (AG) ¶ 20(a).

While the applicant claimed to have made payment arrangements and resolved some of the outstanding debts, they failed to provide sufficient documentation to substantiate these assertions. The judge found that the applicant did not present adequate evidence to demonstrate that their financial problems were under control.

Consequently, the mitigating conditions under AG ¶ 20(c) were not applied, as there was insufficient proof that the financial issues had been adequately addressed or resolved. The lack of verifiable documentation ultimately led to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedFinancial Considerations

Mitigating

AG ¶ 20(c)rejectedFinancial ConsiderationsThe applicant did not provide sufficient documentation to support claims of resolving debts.

Key Rule Quoted

“Once a concern arises regarding an applicant’s security clearance eligibility, there is a strong presumption against the granting or maintenance of a security clearance.”
— Dorfmont v. Brown, 913 F.2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)

Procedural Posture

SOR issuedApr 17, 2014
Answer filed—Applicant requested a decision based on the written record.
Hearing heldDec 12, 2014After the close of the record.
Decision dateFeb 13, 2015

Cite For

Insufficient Documentation to Mitigate Financial Concerns Under Guideline F
Burden of Proof Shifts to the Applicant After Government Raises Security Concerns
Strong Presumption Against Granting Security Clearance When Concerns Arise

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 capricious. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

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

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 affirmed the Judge's decision, finding that the Judge's conclusions were supported by substantial evidence and that the applicant's claims did not demonstrate that the decision was arbitrary, capricious, or contrary to law.

Standard of review applied

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

Appeal Board panel

Michael Ra’anan — Chair
Jeffrey D. Billett
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: Applicant’s contains factual assertion not part of the record thus theu constitute new evidence which the Board cannot consider. Adverse decision affirmed. CASENO: 14-00280.a1 DATE: 02/13/2015 DATE: February 13, 2015 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-00280

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 April 17, 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 based on the written record. On December 12, 2014, after the close of 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 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 made the following findings of fact: Applicant is 37 years old. He admitted SOR allegations stating that he had eight delinquent debts totaling approximately $31,500. Applicant explained that his financial issues began when he was unemployed from late 2009 to early 2010. The unemployment in conjunction with low paying jobs contributed to his financial issues. He has a number of debts that he hopes to have paid by the end of 2014. Applicant stated that he is making payment arrangements for several debts. However, he did not provide any documentation for the payment plans. Applicant claims to have disputed some accounts, but he did not provide any documentation. Applicant further claims that he has paid off four debts and that two more are in settlement or payment plans, but he provided no proof of payment or other documentation. There is nothing in the record to show Applicant’s income or expenses. There is no record of financial counseling. The Judge reached the following conclusions: Applicant’s admissions and credit reports establish the collection accounts, delinquent debts, and judgments. It is left to Applicant to overcome the case against him and mitigate security concerns. Applicant’s financial difficulties occurred due to a period of unemployment, but he did not provide any information to show the nexus between that unemployment and the delinquent debts. Applicant made some effort to pay some debts. However, as to the other collection accounts or charged-off accounts, there is no documentation of any payment plan. With the exception of one debt, Applicant did not provide any documentation for the debts he claimed he has paid. Given the ultimate burden, there are not clear indications that his financial problems are being resolved and are under control. Applicant states that his unemployment caused him difficulties, but once he secured employment in 2013, he established payment arrangements. He listed several debts he claims have either been paid, settled, or are the subject of ongoing payments. He states he has reached out to several other creditors to resolve debts but has not yet made contact. The Board construes Applicant’s assertions as a claim that the Judge did not adequately consider these matters in mitigation, and therefore her decision is arbitrary, capricious, and contrary to law. Applicant’s brief contains numerous factual assertions that were not part of the record below. These matters constitute new evidence, which the Board cannot consider. Directive ¶ E3.1.29. Once a concern arises regarding an applicant’s security clearance eligibility, there is a strong presumption against the granting or maintenance of a security clearance. See Dorfmont v. Brown, 913 F.2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The gravamen of the Judge’s decision was that, in response to the Government’s case, Applicant claimed to be addressing and/or paying his debts, but he had offered no documentary proof or corroboration to support his claims. 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. See, e.g., ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007). The Judge’s conclusion that Applicant’s evidence was insufficient to overcome the Government’s case is sustainable. 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 Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board