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ISCR Case 15-00910.a1 — CASE

ISCR Case 15-00910.a1denied

Case Headnote

ISCR Case No. 15-00910.a1

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

Summary

A 61-year-old applicant was denied a security clearance due to unresolved financial issues under Guideline F (Financial Considerations), despite a favorable finding under Guideline E (Personal Conduct). The applicant admitted to significant debts, including a federal tax lien totaling approximately $121,000.

The denial was based on the applicant's failure to provide sufficient evidence that these financial problems were being resolved or were under control. While the applicant cited a serious medical condition, the judge determined this did not excuse the financial irresponsibility.

Disqualifying conditions under AG ¶ 20 were raised, and mitigating conditions under AG ¶ 21(a) and AG ¶ 21(c) were considered but ultimately did not overcome the concerns. The appeal board affirmed the denial, finding no harmful errors in the judge's decision.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21(a)rejectedThe Behavior Was Not RecentThe applicant's financial issues were ongoing and unresolved.
AG ¶ 21(c)rejectedThe Individual Has Received or Is Receiving Counseling for the ProblemThe applicant did not demonstrate effective management of his financial obligations.

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 issuedOct 15, 2015
Answer filed—
Hearing heldMay 31, 2016
Decision dateAug 8, 2016

Cite For

Affirmation of Adverse Decisions Based on Unresolved Financial Issues Under Guideline F
Insufficient Evidence of Financial Responsibility Leading to Denial of Security Clearance
Harmless Error Doctrine in the Context of Security Clearance Appeals

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 filed by the Applicant after the DoD denied his request for a security clearance based on financial considerations and personal conduct. The Board affirmed the Judge's decision, finding no harmful error that would change the outcome of the case. The Judge's findings were supported by substantial evidence, and the Applicant's arguments were insufficient to demonstrate that the decision was arbitrary or capricious.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCarol G. Ricciardello — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Erroneous finding of fact — raised by the applicantError found, but harmless
The Judge erred in finding the date the Applicant began working for his employer.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Applicant disagreed with the Judge's weighing of the evidence.
New evidence offered (barred on appeal) — raised by the applicantNot reached
The Applicant submitted new evidence regarding his Federal tax debt that was not considered.

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 error was harmless and that the decision was not arbitrary or capricious. The evidence supported the Judge's conclusions regarding the Applicant's financial situation.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael Ra’anan — Chair
James E. Moody
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; Guideline E DIGEST: Error in the Judge’s findings is harmless. Disagreement with the Judge’s weighing of the evidence not enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. No new evidence may be considered on appeal. Adverse decision affirmed. CASE NO: 15-00910.a1 DATE: 08/08/2016 DATE: August 8, 2016 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-00910

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 October 15, 2015, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On May 31, 2016, after the hearing, 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 issues on appeal: whether the Judge’s findings contained errors and whether the Judge’s decision was arbitrary, capricious, or contrary to law. The Judge’s finding in favor of Applicant on the sole Guideline E allegation was not raised as an issue on appeal. Consistent with the following, we affirm the Judge’s adverse decision. The Judge’s Findings of Fact Applicant, who is 61 years old, admitted each of the Guideline F allegations. A Federal tax lien was filed against him in 2009 for about $121,000 and another in 2010 for about $32,000. He also has ten other delinquent debts totaling about $37,000. Applicant worked for a Federal contractor from 1996 until he developed a serious and debilitating illness in 2014. Since then, he has been unable to work or pay his bills. He contacted the creditors to explain the reason why he could not pay them. He does not know when he will be able to pay his delinquent debts. The alleged debts are established by credit reports from September 2012 and July 2015. While he was employed, Applicant worked away from his residence, and his stepmother took care of his bills, banking, and taxes. She was supposed to file his Federal income tax returns and make the required quarterly tax payments. He testified that she never filed his 2004 through 2011 Federal income tax returns and did not pay his taxes as she agreed to do. He paid an attorney about $6,000 to arrange an installment agreement with the Internal Revenue Service (IRS) to pay his tax debt. He stated that he has been making monthly payments of $124 to the IRS since 2012. He provided a letter indicating the IRS accepted an installment agreement for him to pay $124 a month beginning in December 2013. He provided proof he made payments of $124 to the IRS in December 2013 and January 2016. An IRS letter from November 2015 indicates that Applicant owes a balance of about $82,000 for 2004 through 2012. In the block “last payment received,” the amount is zero. He testified that he uses his Social Security disability payment to pay the IRS. He indicated that the IRS may suspend his installment agreement because he cannot afford to make the payments. Applicant provided a character letter from an employer who describes him as dependable, conscientious, honest, trustworthy, and an excellent employee. The Judge’s Analysis The Judge concluded that none of Applicant’s alleged debts are paid or resolved. She noted that Applicant’s stepmother stole from him and abused a position of trust by failing to manage his financial obligations. In 2014, he became disabled and was unable to pay his bills. He provided proof of making only two payments to the IRS under an installment agreement, but the Judge noted the balance he owes to the IRS is less than the amount of the alleged tax liens. Although his medical condition was beyond his control, he failed to provide sufficient evidence that he responsibly monitored his financial situation to ensure his taxes and other debts were being paid. There is insufficient evidence to conclude his financial problems are being resolved or are under control.

DISCUSSION

Applicant contends that the Judge erred in making a finding of fact about his employment. The Judge found that he began working for his employer in 1996, but the evidence reflected that he actually started there in 2002. Although the Judge erred in that finding, it is likely that she would have rendered the same decision even if that error had not been made. Therefore, the Judge’s error is harmless. See, e.g., ISCR Case No. 14-03601 at 3 (App. Bd. Jul. 1, 2015). Applicant argues that the 2012 credit report shows that he made high-cost purchases, was not turned down for credit, and was living within his means. He also points out that his 2015 credit report reflects a different story because of delinquent debts resulting from his catastrophic illness. This argument amounts to a disagreement with the Judge’s weighing of the evidence and is not sufficient 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. 14-06634 at 2 (App. Bd. Apr. 28, 2016). In the appeal brief, Applicant also provided documents concerning his Federal tax debt that he did not have at the time of the hearing. Those documents constitute new evidence that the Appeal Board cannot consider. See Directive ¶ E3.1.29. (“No new evidence shall be received or considered by the Appeal Board”). 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.”

ORDER

The Decision is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board