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ISCR Case 15-00092.a1 — CASE

ISCR Case 15-00092.a1denied

Case Headnote

ISCR Case No. 15-00092.a1

Apr 8, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A defense contractor employee and former National Guard member was denied a security clearance due to unresolved financial issues under Guideline F (Financial Considerations). The applicant had numerous outstanding delinquent debts, which raised disqualifying condition F.3.

Despite the applicant's claims that health problems and a divorce contributed to her financial difficulties, she failed to provide sufficient evidence of responsible action regarding these debts. The judge found her mitigating evidence to be limited and insufficient to resolve the security concerns.

Consequently, the applicant's appeal was denied, and her security clearance was not granted.

Conditions Referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts

Key Rule Quoted

“It is an applicant’s job to present evidence sufficient to mitigate the concerns raised in his or her case, and the applicant bears the ultimate burden of persuasion that he or she should be granted a clearance.”
— Directive ¶ E3.1.15

Procedural Posture

SOR issuedAug 17, 2015
Answer filed—Applicant requested a decision on the written record.
Hearing heldJan 28, 2016
Decision dateApr 8, 2016

Cite For

Insufficient Evidence to Mitigate Financial Concerns Under Guideline F
Applicant's Burden of Persuasion in Security Clearance Cases
Adequate Notice of Rights to Submit Evidence in Security Clearance Proceedings

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 argued that she was not adequately informed of her rights to submit evidence and that the Judge's decision was arbitrary and capricious. The Board affirmed the denial, finding that the applicant was properly informed and that the Judge's decision was supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRoger C. Wesley — 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 contended that the Judge failed to consider all of the evidence in the record, resulting in a decision that was arbitrary, capricious, or contrary to law.
No specific harmful error alleged — raised by the applicantRejected
Applicant alleged she had not been adequately apprised of her right to submit evidence.

Why the Board ruled this way

The Board found that the Judge adequately considered the evidence and that the Applicant was properly informed of her rights to submit evidence. The Judge's conclusion that the Applicant did not meet her burden of persuasion was supported by the record.

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: The record shows that Department Counsel advised Applicant that she had 30 days from receipt of the FORM to submit documents “setting forth objections, rebuttal, extenuation, mitigation, or explanation, as appropriate.” Applicant’s copy of the FORM was accompanied by a DOHA cover letter, which advised Applicant of her right to submit objections “or any additional information you wish to be considered.” The DOHA official enclosed a copy of the Directive, which explains an applicant’s rights in detail, and he advised Applicant how she could access the Directive on line. Adverse decision affirmed. CASENO: 15-00092.a1 DATE: 04/08/2016 DATE: April 8, 2016 In Re: -----------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-00092

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 August 17, 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 January 28, 2016, 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 issues on appeal: whether Applicant had been adequately apprised of her right to submit evidence and whether the Judge failed to consider all of the evidence in the record, resulting in a decision that 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 in a job she has held since August 2014. She served in the National Guard from 1993 to 2002. Between late 2010 and early 2014, Applicant acquired numerous delinquent debts that are still outstanding. She provided documentation for her dispute of one of the SOR debts. She claimed to have disputed two others but provided no corroboration. Applicant’s delinquent debts resulted from chronic health problems at a time when she was uninsured. She also states that a divorce impaired her financial condition. Applicant documented some payments to creditors, although it is not clear whether they are for debts listed in the SOR. Her reply to the File of Relevant Material (FORM) does not shed light on this difficulty. Applicant provided no performance evaluations or evidence of community contributions. The Judge’s Analysis The Judge stated that the record is not clear as to the extent to which Applicant’s divorce and lack of insurance played an important role in her debts. He stated that she had not provided sufficient evidence of responsible action in regard to her debts, in any event. The Judge observed that most of Applicant’s documented payments were to creditors other than those in the SOR. He concluded that Applicant’s security concerns are not resolved through a whole-person analysis, insofar as the mitigating evidence in the record was limited.

DISCUSSION

Applicant states that she could have submitted performance evaluations, if she had known that it was appropriate. The record shows that Department Counsel advised Applicant that she had 30 days from receipt of the FORM to submit documents “setting forth objections, rebuttal, extenuation, mitigation, or explanation, as appropriate.” (emphasis added) Applicant’s copy of the FORM was accompanied by a DOHA cover letter, which advised Applicant of her right to submit objections “or any additional information you wish to be considered.” DOHA Letter, dated September 22, 2015. The DOHA official enclosed a copy of the Directive, which explains an applicant’s rights in detail, and he advised Applicant how she could access the Directive on line. Under the circumstances, the record shows that Applicant was adequately advised of her right to submit evidence in her own behalf. While the various communications from DOHA personnel did not specifically mention performance evaluations, these communications were sufficient to have placed a reasonable person on notice as to the general extent of an applicant’s right to present evidence. Applicant was not denied adequate notice of her rights. See, e.g., ISCR Case No. 11- 11221 at 3 (App. Bd. Aug. 19, 2013). Applicant contends that the Judge did not consider all of the evidence, citing to her efforts at debt resolution, her military service, etc. The Judge made findings about this evidence. His ultimate conclusion that Applicant had not provided sufficient evidence to mitigate the concerns in her case is consistent with the record that was before him. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. Neither has she shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-06093 at 3 (App. Bd. Dec. 4, 2015). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. It is an applicant’s job to present evidence sufficient to mitigate the concerns raised in his or her case, and the applicant bears the ultimate burden of persuasion that he or she should be granted a clearance. Directive ¶ E3.1.15. The Judge’s conclusion that Applicant had not met her burden of persuasion 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board