CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 14-01798.a1 — CASE

ISCR Case 14-01798.a1denied

Case Headnote

ISCR Case No. 14-01798.a1

Jun 18, 2015· Hon. Jeffrey D. Billett· appeal

Summary

A 23-year U.S. military veteran was denied a security clearance under Guideline F (Financial Considerations) due to mortgage delinquency and inadequate financial management following her separation from her husband. The disqualifying condition F.1 was raised, while mitigating conditions F.2 and F.3 were considered.

Despite her extensive military service and efforts to address her financial problems, the appeal board affirmed the denial. The board found that the applicant failed to provide a clear plan for resolving her mortgage delinquency and presented no evidence of financial counseling or sustained progress in addressing her debts.

Ultimately, the applicant's financial situation was characterized as muddled, lacking clarity on how she intended to proceed with her obligations. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

F.1raisedInability to Satisfy Debts

Mitigating

F.2rejectedThe Conditions That Resulted in the Financial Difficulties Were Largely Beyond the Applicant's ControlThe judge found that the applicant's financial issues were not adequately explained or resolved.
F.3rejectedThe Applicant Has Made Good Faith Efforts to Resolve Her Financial ProblemsThe judge concluded that the applicant's efforts were insufficient and lacked a clear plan.

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 issuedJun 26, 2014
Answer filed—
Hearing heldApr 15, 2015
Decision dateJun 18, 2015

Cite For

Insufficient Evidence of Financial Management Under Guideline F
Lack of a Clear Plan to Resolve Financial Issues
Characterization of Financial Difficulties as Muddled

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 based on financial considerations under Guideline F. The applicant challenged the Judge's findings and decision, arguing errors in fact and law. The Board affirmed the Judge's decision, finding no harmful errors and that the decision was supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowArthur E. Marshall, Jr. — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge's findings of fact contained errors.
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.

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 that the Judge's findings were supported by substantial evidence and that the decision was not arbitrary or capricious. The Board also noted that any errors in the Judge's findings were deemed harmless and did not affect the outcome.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Michael 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: We do read Judges’ sentences in isolation but in light of the record as a whole. Adverse decision affirmed. CASENO: 14-01798.a1 DATE: 06/18/2015 DATE: June 18, 2015 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-01798

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 June 26, 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 hearing. On April 15, 2015, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Arthur E. Marshall, Jr., 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 the Judge’s findings of fact contained errors 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 served in the U.S. military for 23 years, retiring in 2012. She separated from her husband a year ago, and she is the primary financial resource for the couple’s four children, as well as for home maintenance. Applicant’s husband earns in excess of $100,000 a year. In 2007, Applicant and her husband were living in their jointly owned home. A neighbor was having financial trouble, so they tried to help by purchasing his home. Soon after that, the real estate market declined, as did the local job market. The couple relocated to a more costly part of the country. The economic costs of maintaining the second home have been “financially onerous.” Decision at 2. The mortgage on the second home has become delinquent, a problem that was exacerbated by a three-month delay in Applicant’s retirement pay and a four-month delay in finding post-military employment. She has sought to refinance the home since 2012, declining an offer by the bank for a deed in lieu of foreclosure for “sentimental reasons.” Id. She also stated that she was “afraid to do it [because she] didn’t know what [she] was getting in to.” Id. at 3. After foreclosure was entered formally, Applicant submitted a money order for $30,600 in an effort to reinstatement the loan. However, her effort failed, and the loan was transferred to a new lender. She states that she is now open to a deed in lieu of foreclosure. Applicant’s property has been rented for the past four years. The monthly mortgage payment is $2,490, but the renters pay only $1,440, less any repairs they might have incurred. Applicant requested a reinstatement of the loan about a week before the hearing. If it is approved, she hopes that her husband will contribute additional sums needed for the reinstatement. She also hopes for a loan modification. She has not fully researched short-sale as a possible solution. It is difficult to discern which spouse pays for what expenses related to the properties or to other matters. The couple’s shared obligations appear to be addressed in an ad hoc manner. The Judge’s Analysis The Judge stated that Applicant has considered a number of options for resolving her mortgage debt but had not settled on a specific plan. He stated that, while she wants to keep the house, she lacks the necessary approval to do so. He stated that there is no evidence that Applicant had received financial counseling. Although Applicant apparently has enough money to resolve the debt, she has made no sustained progress. In the whole-person analysis, the Judge stated that, despite her education and experience, Applicant appears to be “muddled as to how she can best proceed with regard to her second home.” Id. at 6. Reiterating her various attempts to address her debt, the Judge stated that Applicant is pursuing approaches that she has tried before. More to the point, the Judge found that it is not clear why Applicant’s loan became delinquent. He observed that her net monthly income should be enough to satisfy the debt. The Judge concluded that, lacking evidence as to the reason for the delinquency or for why Applicant cannot afford the home, the record does not support a favorable conclusion.

DISCUSSION

Applicant challenges some of the Judge’s findings of fact. She states that she and her husband were not living in their jointly owned home at the time they purchased the second home. She challenges the Judge’s finding that the couple relocated to a more costly region due to a declining job market. Rather, she argues that they relocated because of military orders. She also contends that she did not decline the bank’s offer of an alternative to foreclosure; rather, she did not look into it further. We examine a Judge’s findings of fact to see if they are supported by substantial record evidence, that is, “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” ISCR Case No. 11-10474 at 3 (App. Bd. Sep. 5, 2014), quoting Directive ¶ E3.1.32.1. Examining the first challenged finding in light of Government Exhibit 1, Security Clearance Application, we conclude that Applicant is correct. This document states that, at the time they purchased the second home, Applicant and her husband were living in rental property in another state. However, even if this error had not occurred, the Judge’s decision would most likely have been the same. Therefore, this error is harmless. Otherwise the Judge’s material findings of security concern are supported by substantial record evidence or constitute reasonable inferences that could be drawn from the evidence.1 See, e.g., Id. at 5. Applicant has not cited to a harmful error in the Judge’s Findings of Fact. Applicant takes umbrage at the Judge’s use of the word “muddled” in characterizing her approach to resolving her financial problem. She states that she is not muddled, that she has many responsibilities that preclude her devoting all of her time to this matter. We do not consider Judges’ sentences in isolation but in light of the record as a whole. See, e.g., ISCR Case No. 09-07219 at 5 (App. Bd. Sep. 27, 2012). We do not read this sentence as impugning Applicant’s abilities or character. Rather, the Judge is saying that Applicant appears uncertain as to what course of action to undertake, a conclusion that is consistent with the record that was before him. Applicant cites to record evidence of her marital difficulties; of her many years of service to the military, having entailed many relocations over the course of her career; and of the difficulty of managing property located far away. She also cites to evidence of her efforts to reinstate the loan and other steps she has taken to resolve the problem. The Judge made findings about the things Applicant has discussed and he discussed much of it in the Analysis. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 10-04413 at 2 (App. Bd. Feb. 16, 2012). In effect, she argues for an alternative interpretation of the record, which is not enough to undermine the manner in which the Judge weighed the record evidence. See, e.g., ISCR Case No. 12-01977 at 2-3 (App. Bd. Dec. 30, 2013). The Judge examined the relevant data and articulated a satisfactory explanation for the decision, both as to the mitigating conditions and the whole-person factors. The decision is sustainable on this 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 Decision 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board

FOOTNOTES

1 “The Applicant: [The] year I purchased that home in 2007 . . . I’m pretty sure it was . . . like the later part of 2007, I think November 2007 . . . I mean, they are in a very good location. But we moved–our plan was to go back there. But we haven’t been able. We moved like seven times in ten years. And then we followed the job market, and the job market was up here.” Tr. at 15-16. The Judge’s finding about Applicant’s reasons for moving to a more costly region appears to be based on this testimony. As such, the finding constitutes a reasonable interpretation of Applicant’s presentation.