CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 15-03302.a1 — CASE

ISCR Case 15-03302.a1denied

Case Headnote

ISCR Case No. 15-03302.a1

Sep 20, 2016· Hon. Catherine M. Engstrom· appeal

Summary

A security clearance applicant, representing himself, was denied under Guideline F (Financial Considerations) due to significant unresolved delinquent debts. The applicant raised claims of mitigating circumstances, but these were found insufficient by the judge.

The Appeal Board affirmed the denial, concluding that the judge's findings were not arbitrary or capricious. The Board specifically noted that the applicant's financial issues, as detailed under Disqualifying Condition AG ¶ 20, remained unaddressed. While the applicant presented arguments related to Mitigating Condition AG ¶ 21, these were ultimately deemed inadequate to overcome the security concerns.

Consequently, the applicant's request for a security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe applicant's claims of mitigating circumstances were insufficient.

Key Rule Quoted

“The Appeal Board cannot consider new evidence on appeal.”

Procedural Posture

Decision DateSep 20, 2016

Cite For

Insufficient Mitigating Circumstances Under Guideline F
Importance of Financial Responsibility in Security Clearance Determinations
Limitations on New Evidence During Appeal Process

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 a denial of a security clearance based on financial considerations under Guideline F. The applicant argued that the Judge made errors in findings and weighed evidence improperly. The Board affirmed the decision, finding no harmful error that would change the outcome.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowGregg A. Cervi — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law.
Erroneous finding of fact — raised by the applicantError found, but harmless
Applicant challenged the Judge's finding regarding the nature of a $16,700 education loan, asserting it was actually an automobile loan that had been resolved.

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 any errors were harmless, affirming the adverse decision.

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

James E. Moody
William S. Fields
Catherine M. Engstrom

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 Appeal Board cannot consider new evidence on appeal. Error in Judge’s findings is harmless. Applicant did not show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Adverse decision affirmed. CASE NO: 15-03302.a1 DATE: 09/20/2016 DATE: September 20, 2016 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-03302

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 November 10, 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 June 30, 2016, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Gregg A. Cervi 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 of fact contained errors and whether the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant has been employed by a Defense contractor since 2010. He served in the military from 1995 to 2005 and has held a security clearance in the past. He divorced his wife in 2008. Including his time in the military, he has worked for the Federal Government for 20 years, and served in the Pentagon on September 11, 2001. He has experienced some difficult circumstances, such as a divorce, his girlfriend’s health problems, a job loss, and a diminution in income. Applicant’s SOR lists several delinquent debts, for such things as a mortgage account nearly $21,700 past-due; a delinquent education loan nearly $16,700; and other consumer debts. He asserted that he had not been successful in refinancing the mortgage and that he intends to sever all financial ties to his ex-wife. Applicant provided no independent information about the status of his debts or about efforts to resolve them. The Judge’s Analysis Applicant has been working full-time since 2010. Despite circumstances outside his control that affected his financial situation, Applicant provided no information of responsible action. There is no documentary evidence to show what steps Applicant may have taken to address his debts, nor is there evidence of his current financial condition. Applicant’s problems are recent and ongoing, and there is insufficient evidence of good-faith efforts to resolve his problems.

DISCUSSION

Much of Applicant’s brief consists of matters from outside the record, including a document that post-dates the Decision. We cannot consider new evidence on appeal. Directive ¶ E3.1.29. Applicant challenges the Judge’s finding about the $16,700 education loan. He states that this was actually an automobile loan which has been resolved. We find this argument persuasive as to the nature of the debt. Applicant’s credit reports, his clearance interview, and his Response to the File of Relevant Material (FORM) identify this as a car loan. In his FORM Response, Applicant mentioned an education loan for an unspecified amount, which may be the basis for the Judge’s finding. In any event, even though the Judge erred, it is not likely that he would have produced a different decision had the error not occurred. Applicant’s FORM Response supplied no corroboration for his claim that he was addressing the debt. Therefore, the error is harmless. See, e.g., ISCR Case No. 14-03601 at 3 (App. Bd. Jul. 1, 2015). Otherwise, the Judge’s material findings are based upon “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. The balance of Applicant’s brief reiterates evidence about his divorce, his ex-wife’s effect on his financial condition, his service to his country, and his determination to resolve his debts. The Judge made findings about these things. Applicant’s brief 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. 14-06686 at 2 (App. Bd. Apr. 27, 2016). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: Catherine M. Engstrom Catherine M. Engstrom Administrative Judge Member, Appeal Board