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ISCR Case 14-03747.a1 — CASE

ISCR Case 14-03747.a1denied

Case Headnote

ISCR Case No. 14-03747.a1

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

Summary

A defense contractor with a military background was denied a security clearance under Guideline F, Financial Considerations. The denial stemmed from numerous delinquent debts, including judgments and unresolved student loans. Disqualifying conditions were raised regarding a history of not meeting financial obligations and an inability or unwillingness to satisfy debts.

While mitigating conditions were considered, such as the debts not being recent and the applicant demonstrating a good-faith effort to resolve them, the judge found these insufficient. The applicant failed to provide evidence of payments under a student loan consolidation agreement and showed insufficient efforts in addressing other debts, particularly before the Statement of Reasons (SOR) was issued.

Ultimately, the judge concluded that the applicant had not met the burden of persuasion for mitigation. Due to the persistent delinquent debts and the lack of demonstrated resolution efforts, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedFinancial Considerations
AG ¶ 20(c)raisedFinancial Considerations

Mitigating

AG ¶ 20(d)rejectedFinancial ConsiderationsThe applicant did not provide evidence of financial counseling or good character.
AG ¶ 20(e)rejectedFinancial ConsiderationsThe applicant's claims of legitimate debts were not substantiated.

Key Rule Quoted

“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 issuedSep 8, 2014
Answer filed—
Hearing heldAug 27, 2015
Decision dateNov 13, 2015

Cite For

Insufficient Efforts in Addressing Financial Obligations Under Guideline F
Burden of Persuasion for Mitigation Lies with the Applicant
Impact of Personal Circumstances on Financial Stability Is Not Determinative Without Evidence of Resolution Efforts

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 that the Judge's conclusions were supported by substantial evidence and that any errors were harmless.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRoger C. Wesley — denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
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 Judge properly applied the whole-person concept. The Board also noted that any errors in the Judge's findings were deemed harmless and did not affect the overall 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 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: Given a ration basis, a Judge may conclude that some allegations are mitigated while others are not. Hearing office decisions are not binding on other Judge or on the Appeal Board. Adverse decision affirmed CASENO: 14-03747.a1 DATE: 11/13/2015 DATE: November 13, 2015 In Re: ----------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-03747

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On September 8, 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 August 27, 2015, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Roger C. Wesley denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: 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 for a Defense contractor. She served three months in the military and has attended college, without receiving a degree. Applicant underwent a divorce in 2007. Applicant’s SOR lists numerous delinquent debts, which include two judgments against her. The Judge found that one of the judgments had been paid and that Applicant successfully disputed the validity of the other. Many of her remaining debts are for student loans. Applicant entered into a consolidation agreement to pay off these obligations, with monthly payments of about $272. Applicant provided no evidence of payments under this agreement. Applicant did provide corroboration for her payoffs of several other debts, however. Applicant claimed that some of her SOR debts were not legitimate, on the grounds that she could not identify them or they were not on her credit report. Applicant attributes her financial problems to her divorce. She has established a budget and is working to resolve her debts. Applicant did not provide evidence of financial counseling or of good character, community involvement, etc. The Judge’s Analysis The Judge resolved some of the SOR allegations in Applicant’s favor. However, for others, including the student loans, he reached the opposite conclusion. He noted evidence that Applicant’s divorce affected her financial condition, but he stated that its actual impact was not clear from the evidence in the record. He also noted that the fact that debts no longer show up on a credit report is not in and of itself a reason to believe that the debts have been resolved. The Judge stated that, after receiving the SOR, Applicant contacted her creditors and entered into payment agreements with many of them. However, he concluded that Applicant had “shown insufficient efforts in addressing” her debts. Decision at 6. He also stated that Applicant’s apparently inability to make significant progress on her debts prior to the issuance of the SOR was a factor that weighed against her.

DISCUSSION

Applicant contends that the Judge’s application of the whole-person concept was faulty. Among other things, she cites to what she believes are inconsistencies in his analysis of her case. She notes that the Judge accepted her contention that she had paid off some of her debts. She argues that, having found her credible on these, the Judge had no basis to reject her explanations for the remainder. As a consequence, the Judge produced a “fragmented analysis.” Appeal Brief at 13. We do not find this argument to be persuasive. It is within a Judge’s discretion to conclude that an applicant has mitigated some of the allegations against him but not others. So long as a Judge has articulated a rational basis for his or her conclusions, we will not disturb them on appeal. First of all, we are required to give deference to a Judge’s credibility determinations. Directive ¶ E3.1.32.1. In addition, the Judge properly noted that mere evidence that debts no longer appear on a credit report is not a reason to believe that they are not legitimate or that they have been paid. See, e.g., ISCR Case No. 14-03612 at 3 (App. Bd. Aug. 25, 2015). Moreover, although he found that Applicant had entered into a payment plan for her student loans, she did not provide evidence of actual payments. These findings are consistent with the record that was before the Judge and support his conclusion that Applicant had not met her burden of persuasion. See Directive ¶ E3.1.15 for the proposition that the applicant bears the burden of persuasion as to mitigation. All in all, we conclude that the Judge’s whole-person analysis complied with the requirement of the Directive, in that he evaluated Applicant’s security-significant conduct in light of the record as a whole. See, e.g., ISCR Case No. 14-02806 at 4 (App. Bd. Sep. 9, 2015). Applicant’s citation to various aspects of the record is not sufficient to rebut the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 12-08412 at 2 (App. Bd. Sep. 11, 2015). Neither is it sufficient to show that the Judge mis-weighed the evidence. Applicant draws our attention to another Hearing Office case. However, this case does not undermine the Judge’s decision. Hearing Office cases are not binding on other Hearing Office Judges or on the Appeal Board. See, e.g., ISCR Case No. 14-02632 at 3 (App. Bd. Aug. 28, 2015). Moreover, there are significant factual differences between the case that Applicant has cited and her own. Applicant argues that the Judge’s findings contain errors. She notes, for example, the he found that she had not completed college, even though she stated in her security clearance application that she had a bachelor’s degree. Item 2, Security Clearance Application, at 11. We conclude that this error is harmless, in that it did not likely affect the overall outcome of the case. See, e.g., ISCR Case No. 12-00678 at 2 (App. Bd. Jun. 13, 2014). The Judge’s material findings are supported by substantial record evidence. See Directive ¶ E3.1.32.1.1 The Judge examined the relevant data and articulated a satisfactory explanation for the decision. See ISCR Case No. 14-04186 at 4 (App. Bd. Oct. 28, 2015) (Timing of debt payment is relevant in Guideline F cases). 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 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 We examine a Judge’s findings of fact to see if they “are supported by 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.” See also See ISCR Case No. 14-04226 at 3 (App. Bd. Aug. 18, 2015).