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ISCR Case 14-00434.a1 — CASE

ISCR Case 14-00434.a1denied

Case Headnote

ISCR Case No. 14-00434.a1

Jan 20, 2015· Hon. Michael Y. Ra'anan· appeal

Summary

A retired military consultant was denied a security clearance under Guideline F, Financial Considerations, due to significant financial issues. These included numerous delinquent debts and a failure to file tax returns. The appeal board affirmed the denial, citing the applicant's history of financial irresponsibility.

Specifically, the applicant had previously lost a security clearance for similar financial problems, indicating a pattern of concern. While the applicant made claims about future debt repayment, these were deemed insufficient without a demonstrated track record of resolution.

The board applied Disqualifying Condition F.1, noting the applicant's history of not meeting financial obligations. Although Mitigating Condition F.2 was considered, the applicant's claims of future action were not enough to overcome the established pattern of financial irresponsibility and lack of evidence of current resolution. The security clearance was ultimately denied.

Conditions Referenced

Disqualifying

F.1raisedFinancial Considerations

Mitigating

F.2rejectedFinancial ConsiderationsThe applicant failed to demonstrate responsible action regarding his debts.

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 issuedMar 21, 2014
Answer filed—
Hearing held—
Decision dateJan 20, 2015

Cite For

Denial of Security Clearance Due to Financial Irresponsibility Under Guideline F
Impact of Previous Clearance Loss on Current Eligibility
Insufficient Evidence of Debt Resolution as a Basis for Clearance Approval

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 under Guideline F. The Applicant argued that he was denied due process and that the Judge's conclusions were erroneous. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPaul J. Mason — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Due-process / fairness — raised by the applicantRejected
Applicant asserted that he was denied due process.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge erred in concluding that his circumstances raised security concerns.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued 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 did not err in concluding that Applicant's debts raised security concerns and that he was provided sufficient information regarding his right to present evidence. The Board affirmed the Judge's decision based on the evidence presented.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealBurden of persuasion

Appeal Board panel

Michael Ra’anan — Chair
William S. Fields
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: DOHA personnel provided Applicant with sufficient information about his right to present evidence. Applicant has suffered no due process violation. The Judge did not err in concluding that Applicant’s debts raised security concerns. His having previously lost a clearance due to bad debt should have placed him on notice of the possible impact financial problems can have on clearance eligibility. We cannot consider new evidence on appeal. A Judge has no authority to serve as an investigator. The impact that an unfavorable decision might have on an applicant is not relevant. Adverse decision affirmed. CASE NO: 14-00434.a1 DATE: 01/20/2015 DATE: January 20, 2015 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-00434

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 March 21, 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 on the written record. On October 31, 2014, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Paul J. Mason denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether Applicant was denied due process; whether the Judge erred in concluding that his circumstances raised security concerns; and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant works as a consultant for a Defense contractor. He previously served in the U.S. military, from which he retired. He held a clearance form 1991 until 2007, at which point it was revoked due to financial issues caused by his ex-wife’s spending. Applicant’s SOR alleges numerous delinquent debts, including a debt to the IRS, a failure to file his Federal tax return, utility services, cable services, consumer debts, etc. In his clearance interview, Applicant stated that he intended to pay his delinquent debts, stating that he was able to meet all of his financial obligations. He attributed his current problems to his domestic partner’s decrease in pay. In his Answer to the SOR he stated that he would pay most of his debts within two to six months. He provided no character references or evidence as to the quality of his job performance. The Judge’s Analysis The Judge concluded that Applicant’s delinquent debts, accumulated between 2007 and 2013, along with his failure to file his Federal tax return, raised concerns under Guideline F. In concluding that Applicant had failed to mitigate these concerns, the Judge cited to evidence that he had previously been denied a clearance for financial delinquencies. He also concluded that Applicant had failed to demonstrate responsible action in regard to his debts. The Judge noted that Applicant’s problems were affected by his partner’s loss of pay; however, he stated that there is no evidence that he had addressed even his smallest debts.

DISCUSSION

Applicant asserts that he was denied due process. He states that he was not aware that he had to send in evidence to show debt payment. We note that the memorandum from Department Counsel that accompanied the File of Relevant Material (FORM) advised Applicant of his right “to submit a documentary response setting forth objections, rebuttal, extenuation, mitigation, or explanation” regarding the information contained therein. In addition, the FORM was accompanied by a letter from a DOHA official advising him of his right “to submit any material you wish the Administrative Judge to consider.” DOHA also provided Applicant with a copy of the Directive, which contains a description of his right to submit evidence. We conclude that the information that DOHA personnel provided to Applicant was sufficient to apprise a reasonable person of the extent of his right to present evidence. We find no reason to believe that Applicant was denied the due process afforded by the Directive. See, e.g. ISCR Case No. 12-02296 at 3 (App. Bd. Mar. 12, 2014). Applicant contends that his circumstances do not raise concerns under Guideline F. He asserts that he is “not in dire need for money,” and that he is not being pursued by creditors. The gist of his argument appears to be that he will not engage in illegal activity in order to pay his debts. We have previously said, however, that the concern under Guideline F is not simply that a person’s financial problems may tempt him or her to commit crimes. The Guideline also states that failure to satisfy debts may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information. Directive, Enclosure 2 ¶ 18. See ISCR Case No. 10-00925 at 2 (App. Bd. Jun. 26, 2012). In the case before us, the evidence shows that Applicant had previously lost a clearance due to financial problems, which was sufficient to have placed him on notice of the possible impact of delinquent debt on his clearance eligibility. Nevertheless, since that time he amassed additional debt, which had not been resolved as of the close of the record. This evidence was sufficient to raise a concern that Applicant may be lacking in the judgment and reliability expected of persons with access to classified information. The Judge did not err in concluding that Applicant’s circumstances raised security concerns. Applicant cites to his Answer to the SOR, which states that he had filed his 2012 tax return and that he had paid down his tax debt. The Judge made findings about this evidence. Applicant’s argument is not sufficient to rebut the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 11-10255 at 4 (App. Bd. Jul. 28, 2014). Applicant’s brief asserts matters from outside the record concerning his effort at debt repayment. We cannot consider new evidence on appeal. Directive ¶ E3.1.29. Applicant contends that the Judge erred by not contacting his creditors regarding the extent to which he had addressed his debts. A Judge has no authority to serve as an investigator in a DOHA case. See, e.g., ISCR Case No. 11-03500 at 3 (App. Bd. Feb. 28, 2012) (“Any attempt by a Judge independently to investigate allegations would conflict with his or her role as an impartial fact-finder”). When the Government produces evidence of security concern, it is the applicant’s responsibility to present evidence in mitigation. The applicant bears the burden of persuasion. See Directive ¶ E3.1.15. If Applicant had additional evidence that he believed relevant to his case, it was his duty to provide it. However, despite Department Counsel having opined in the FORM that the record as it then stood was not sufficient to mitigate Applicant’s concerns, he submitted nothing in response. Accordingly, the Judge’s decision was consistent with the record that was before him. Applicant cites to his job loss, resulting from the denial of his clearance. The impact that an unfavorable decision may have on an applicant is not a relevant or material consideration in evaluating his or her security eligibility. See ISCR Case No. 11-13180 at 3 (App. Bd. Aug. 21, 2013). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The decision is sustainable on this record. Applicant’s presentation consists of promises of future debt payment, which is not a substitute for a demonstrated track record of debt resolution. See, e.g., ISCR Case No. 09-02926 at 2 (App. Bd. May 11, 2014). “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 Decision 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 E. Moody James E. Moody Administrative Judge Member, Appeal Board