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ISCR Case 14-06293.a1 — CASE

ISCR Case 14-06293.a1denied

Case Headnote

ISCR Case No. 14-06293.a1

Jan 13, 2016· Hon. Jeffrey D. Billett· appeal

Summary

An applicant representing herself was denied a security clearance under Guideline F (Financial Considerations) due to numerous delinquent debts and insufficient evidence of financial responsibility. The applicant's financial issues included multiple debts in collection or charged-off status, which raised a disqualifying condition under AG ¶ 20.

While the applicant attributed her financial difficulties to external circumstances, the judge determined she had not taken sufficient proactive measures to resolve these debts before filing for bankruptcy. Although mitigating conditions AG ¶ 21(a), AG ¶ 21(c), and AG ¶ 21(d) were considered, they were not enough to overcome the security concerns.

The denial was primarily based on the applicant's extensive delinquent debts and the lack of a clear track record of financial stability. Only five months had passed since her bankruptcy discharge, which the judge deemed too short a period to establish consistent financial responsibility.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21(a)rejectedThe Behavior Was Not RecentThe judge noted that the applicant's financial problems were influenced by external circumstances but did not find sufficient evidence of resolution efforts.
AG ¶ 21(c)raisedThe Individual Has Received or Is Receiving Counseling for the Problem
AG ¶ 21(d)rejectedThe Individual Has Initiated a Good-faith Effort to Repay Overdue Creditors or Otherwise Resolve DebtsThe judge concluded that the applicant did not demonstrate a clear track record of sound financial strategy.

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 4, 2015
Answer filed—
Hearing heldNov 15, 2015
Decision dateJan 13, 2016

Cite For

Insufficient Evidence of Financial Responsibility Under Guideline F
Importance of Proactive Debt Resolution Efforts Prior to Bankruptcy
The Necessity of a Clear Track Record of Financial Stability for Security Clearance Eligibility

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 decision, finding that the Judge's findings were supported by substantial evidence and that the applicant did not provide sufficient evidence to mitigate the concerns raised.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCarol G. Ricciardello — 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 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 material findings were supported by substantial evidence and that the Judge did not err in her analysis or conclusions. The Board affirmed the adverse decision based on the lack of sufficient evidence to mitigate the security concerns raised.

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: The Judge’s material findings satisfy the requirements of the Directive for factual sufficiency. Applicant did not rebut the presumption that the Judge considered all of the evidence. Comments in the interview summary do not represent the opinions of the interviewer as to Applicant’s security eligibility. Adverse decision affirmed. CASE NO: 14-06293.a1 DATE: 01/13/2016 DATE: January 13, 2016 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-06293

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 4, 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 November 15, 2015, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Carol G. Ricciardello 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 has numerous delinquent debts, the majority of which were in collection or charged-off status. Applicant has paid some of her debts, including one owed to the IRS. However, the Judge entered adverse formal findings on twelve debts alleged in the SOR. Applicant attributed her problems to a period of unemployment in 2011 occasioned by a government shutdown, to her son’s medical problems, and to a period of separation from her husband. Applicant filed for Chapter 7 bankruptcy protection in January 2015. Her unsecured nonpriority claims, totaling nearly $64,000, included a student loan, personal loans from a bank or credit union, medical debts, insurance costs, a deficiency from the sale of a repossessed vehicle, etc. Applicant received the required credit counseling, advising that she gained “valuable insight into managing her finances.” Decision at 2. She also took a 13-week course provided by a financial education program. Applicant’s debts were discharged in June 2015. As of 2014, Applicant and her husband had a combined income of nearly $98,000, up from the previous year’s total of a little over $83,000. As of September 2015, her average checking account balance was $3,364, and her savings account balance was $1,198. Applicant enjoys an excellent reputation for her work ethic, organization, knowledge, trustworthiness, and honesty. Applicant’s performance appraisals rate her as “fully successful,” “highly successful,” or “exceptional.” Id. at 3. She is involved in church and community activities. She has earned awards and recognitions for her duty performance. The Judge’s Analysis Though noting that Applicant’s financial problems were affected by circumstances outside her control, the Judge stated that Applicant did not provide information about what efforts she took to resolve her debts before resorting to bankruptcy. She cited to evidence that Applicant’s and her husband’s combined incomes increased from 2013 to 2014, yet she did not pay her creditors. The Judge stated that Applicant has worked steadily since resuming her employment in 2011, and she and her husband reconciled in that year also. The Judge stated that, insofar as it had been only five months since Applicant’s discharge in bankruptcy, it was too soon to tell if there are clear indications that her financial problems are behind her. In the whole-person analysis, the Judge stated that Applicant did not explain what action she took to resolve her debts. Despite her bankruptcy discharge, the Judge concluded that insufficient time had elapsed to establish a track record of sound financial strategy.

DISCUSSION

Applicant challenges some of the Judge’s findings of fact. We conclude that the Judge’s material findings of security concern 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.” Directive ¶ E3.1.32.1.1 Applicant cites to her favorable evidence, such as the circumstances outside her control that influenced her problems, her statement that she pays her current bills, her reliance upon the advice of counsel in deciding to pursue bankruptcy, her having obtained credit counseling, etc. The Judge made findings about the evidence that Applicant cites in her Appeal Brief. She discussed much of this evidence in the Analysis portion of the Decision. Applicant’s argument is not enough to rebut the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 14-06093 at 3 (App. Bd. Dec. 4, 2015). Applicant disagrees with the Judge’s comment that insufficient time has passed to show that she is in control of her finances. She also states that she has been candid in her presentation of her financial difficulties and the reasons underlying them. Applicant’s appeal argument is, in essence, a disagreement with the Judge’s weighing of the evidence, which is not enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-04202 at 3 (App. Bd. Dec. 24, 2015). Moreover, we conclude that the Judge’s whole-person analysis complies with the requirements of the Directive, in that she 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 cites to a comment in Item 6, Person Subject Interview Summary, to the effect that there is nothing in her background that could subject her to coercion or blackmail. This represents the interviewer’s summary of Applicant’s statements during the interview, not the interviewer’s opinion of Applicant’s security eligibility. See, e.g., ISCR Case No. 14-03069 at 3 (App. Bd. Jul. 30, 2015). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The Judge’s conclusion that Applicant had not provided enough evidence to meet her burden of persuasion as to mitigation is supportable. Insofar as the Applicant bears the burden of persuasion that he or she should have a clearance (Directive ¶ E3.1.15), a Judge can legitimately point to a paucity of mitigating evidence in support of an adverse decision. See, e.g., ISCR Case No. 14-02632 at 3 (App. Bd. Aug. 28, 2015)(The Judge’s adverse decision based in large part upon an absence of evidence to show mitigation). 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 As stated above, the Judge found that Applicant’s debts included a student loan. Applicant states that she herself does not have any student loans and that, in any event, “student loans are not permitted to be included in bankruptcy.” Appeal Brief at 2. The Judge’s finding about the student loan appears to have been based on Item 7, Bankruptcy Petition. On page 50 of this document, “Sallie Mae” is listed under Schedule F, Creditors Holding Unsecured Nonpriority Claims, as a creditor to whom a debt for a “student loan” is owed in the amount of $12,707. The Bankruptcy Petition was signed by both Applicant and her husband. We note that Item 8, Bankruptcy Discharge, at page 2, states that “[d]ebts for most student loans” are not discharged in Chapter 7 bankruptcy. Even if the Judge erred by not including this exception in her findings, it did not harm Applicant. Therefore, assuming arguendo that the Judge erred in this matter, it is harmless.