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ISCR Case 14-02362.a1 — CASE

ISCR Case 14-02362.a1denied

Case Headnote

ISCR Case No. 14-02362.a1

Jun 21, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant representing herself was denied a security clearance under Guideline F (Financial Considerations) due to unresolved debts exceeding $13,000. The appeal board affirmed this denial, citing the applicant's failure to demonstrate that any missing documents would have altered the outcome.

The judge found against the applicant on nine separate debts, including one substantial debt over $13,000. The applicant did not provide a prima facie showing that she had submitted documents that were not subsequently included in the official record.

Ultimately, the applicant did not successfully rebut the presumption that the judge considered all evidence presented. Any errors in document handling were deemed harmless, leading to the final decision to deny the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

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 14, 2015
Answer filed—
Hearing held—
Decision dateJun 21, 2016

Cite For

Failure to Demonstrate the Impact of Missing Documents on the Outcome of a Security Clearance Case
Harmless Error in Document Handling
Importance of National Security in Clearance Determinations

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 was regarding the denial of a security clearance based on financial considerations. The applicant argued that documents were missing from the record and that the Judge did not consider evidence of debt payments. The Board affirmed the decision, finding no harmful error that would change the outcome.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMartin H. Mogul — denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Due-process / fairness — raised by the applicantError found, but harmless
Applicant argued that documents she submitted were missing from the record.
Judge mis-weighed or ignored evidence — raised by the applicantError found, but harmless
Applicant contended that the Judge did not consider evidence of payments for certain debts.

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 considered all evidence in the record and that any alleged errors were harmless, not affecting the outcome of the case.

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
William S. Fields
James F. Duffy

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 failed to make a prima facie showing that she submitted documents that were not included in the record. Applicant did not rebut the presumption that the Judge considered all of the evidence in the record. Adverse decision affirmed. CASE NO: 14-02362.a1 DATE: 06/21/2016 DATE: June 21, 2016 In Re: ------------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-02362

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 14, 2015, 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 March 30, 2016, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Martin H. Mogul denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30 In the appeal brief, Applicant requests her case be remanded to the Judge so that he could consider all of the documents that she submitted. She stated that it appears from reading the Judge’s decision that documents she submitted never made it to him for his consideration. We construe her request as raising a due process issue because documents she submitted were missing from the record. We have examined Applicant’s contention in light of the record as a whole. The Judge found in favor of Applicant on ten of the alleged debts and against her on nine on them. Regarding a debt of over $13,000 (SOR ¶ 1.g) for which the Judge found against her, she argues that she provided documentation showing the debt was included in a class action lawsuit. The record does contain a court document concerning a proposed settlement in the class action lawsuit. Under the proposed settlement, the creditor would waive an outstanding balance on an applicable loan and report to the credit reporting bureaus the loan balance was zero and should be marked as “paid as agreed.” The court document reflected that a hearing was scheduled for August 2015 to decide whether the proposed settlement should be approved. The hearing date for the proposed settlement, however, was almost two weeks after she submitted her Response to the FORM. Under these facts, we conclude that Applicant has not made a prima facie showing that she submitted more documents regarding the debt in SOR ¶ 1.gthan those contained in the record.1 Furthermore, Applicant has not rebutted the presumption that the Judge considered all the evidence in the record even though he did not discuss the court document in his findings regarding the debt in SOR ¶ 1.g. See, e.g., ISCR Case No. 14-06093 at 3 (App. Bd. Dec. 4, 2015). Applicant also argues she provided bank statements and paperwork from creditors showing that she paid three debts (SOR ¶¶ 1.p, 1.q, and 1.r) for which the Judge found against her, and they were apparently deleted from her credit report. The record contains a credit report that Applicant submitted with a notation that it was being submitted for the debts in SOR ¶¶ 1.p, 1.q, 1.r, and other debts. In her Answer to the SOR, she also stated that she provided documents from creditors showing the debts in SOR ¶¶ 1.p, 1.q, and 1.rwere paid. The Judge, however, found that he could not locate any documents in the record supporting Applicant’s claim that she paid those debts. The total amount of the debts in SOR ¶¶ 1.p, 1.q, and 1.rwas about $440, which is less than 3% of the total amount of the remaining unresolved debts. Given the small dollar amount of the debts in question, it is likely that the Judge would have rendered the same decision even if the documents that are allegedly missing had been contained in the record. Therefore, any error that may have occurred in the handling of the documents that are allegedly missing was harmless. See, e.g., ISCR Case No. 14-03601 at 3 (App. Bd. Jul. 1, 2015). The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. Applicant has not identified any harmful error likely to change the outcome of the case. 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.” 1 Applicant claimed the court document stated the debt in SOR ¶ 1.gwas cleared and paid in full, which was not accurate.

ORDER

The case 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 F. Duffy James F. Duffy Administrative Judge Member, Appeal Board