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ISCR Case 14-02290.a1 — CASE

ISCR Case 14-02290.a1denied

Case Headnote

ISCR Case No. 14-02290.a1

Jan 30, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A defense contractor, employed since 2002, was denied a security clearance under Guideline F (Financial Considerations) due to a history of significant financial delinquencies. Disqualifying conditions under F.3 were raised, specifically concerning overdue payments on a mortgage and an equity loan.

While the applicant presented some evidence of efforts to address these debts, and mitigating conditions F.2 and F.3 were considered, the judges ultimately found these insufficient. The applicant, despite consistent employment and his wife's business success, did not provide a concrete repayment plan or demonstrate a consistent record of payments to resolve the outstanding financial issues.

The decision emphasized that future promises to pay debts were not enough to mitigate security concerns without a demonstrated track record of financially responsible behavior. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts

Mitigating

F.2rejectedThe Conditions That Resulted in the Financial Problem Were Largely Beyond the Person's ControlThe judge found no unforeseen circumstances that justified the applicant's delinquency.
F.3rejectedThe Person Has Made a Good Faith Effort to Repay Overdue Creditors or Otherwise Resolve DebtsThe applicant did not demonstrate a sufficient track record of payments or a repayment plan.

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 28, 2015
Answer filed—
Hearing heldMar 23, 2016
Decision dateJan 30, 2017

Cite For

Denial of Security Clearance Based on Financial Considerations Under Guideline F
Insufficient Mitigation of Financial Issues Despite Favorable Evidence
Importance of a Track Record of Financially Responsible Behavior in Security Clearance Determinations

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 it supported by the record and not contrary to law.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowElizabeth M. Matchinski — denied the clearance

Decided ona hearing

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.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for the decision, affirming that the applicant did not demonstrate sufficient progress in resolving financial issues.

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
James E. Moody
William S. Fields

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: Applicant cites to favorable comments in Department Counsel’s closing argument, for example Counsel’s view that Applicant has gone a long way toward resolving the Government’s concerns. Arguments by parties are not evidence. In the case before us, the record viewed as a whole supports the Judge’s decision. Adverse decision affirmed. CASE NO: 14-02290.a1 DATE: 01/30/2017 DATE: January 30, 2017 In Re: ------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-02290

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 28, 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 hearing. On November 16, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Elizabeth M. Matchinski 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 The Judge made the following findings pertinent to the issues raised on appeal: Applicant has been employed by a Defense contractor since 2002 and is seeking his first DoD security clearance. He and his wife have two children from their marriage, and his wife has two from a previous one. Applicant and his wife purchased a house in 2003, the loan for which was secured by a mortgage. Three years later, they obtained a $40,000 home equity loan on the house in order to make an addition to it. Applicant and his wife have a history of allowing their mortgage and the equity loan to become 90 days past-due. In 2008, Applicant’s wife started a business, and the couple’s income declined substantially. In addition, the wife’s younger son moved in with his father, resulting in a loss of child support payments of about $1,000 a month. By January 2013, Applicant and his wife were nearly $20,000 in arrears on their equity loan. As of January 2014, they had made no payments toward resolving this delinquency. This loan was modified in May 2015, with a new payment of nearly $900 a month, which he found unaffordable. In January 2016, Applicant engaged a debt resolution company to negotiate the restructuring of the equity loan. No payment has been made on this loan for several months. In addition to this, Applicant owes $99 for a medical debt. Moreover, although this was not alleged in the SOR, Applicant has been 30 days behind on car payments for several months in 2015 and 2016.1 Applicant’s wife’s business has outgrown its office space and is looking to purchase a building for its operations. The business now has seven employees and is becoming the largest of its kind in the state. The Judge’s Analysis The Judge resolved some allegations in Applicant’s favor, notably one concerning a delinquent mortgage. Concerning the equity loan, however, she noted that Applicant has become delinquent in payments, despite consistent employment for many years and despite his wife’s business success. She stated that there was no apparent reason for this delinquency, such as unforseen circumstances, etc. She noted the loan modification, but found that the evidence does not include specifics about trial payments that Applicant may have made before the lender would agree to the modification. She stated that, without a repayment plan in place and a record of consistent payments, she could not conclude that Applicant had mitigated concerns arising from this debt. She also resolved the $99 medical bill adversely to Applicant.

FOOTNOTES

1 The missed car payments were not alleged in the SOR. Acknowledging that non-alleged conduct can be considered for certain limited purposes, the Judge stated that she was considering them for Applicant’s judgment and his case for mitigation. Decision at 4, n.1. See, e.g., ISCR Case No. 09-07219 at 5 (App. Bd. Sep. 27, 2012). In the whole-person analysis, the Judge stated that Applicant has not made sufficient progress in resolving the equity loan, noting that it was 120 days past due as of February 2016.2 She stated that promises to pay debts in the future are not a substitute for a track record of financially responsible behavior. She also noted the late payments on Applicant’s automobile loan and that neither Applicant nor his wife could explain their failure to make timely payments on their various obligations. Discussion Applicant cites to evidence that he believes is favorable to him, such as his efforts to address the equity loan, circumstances attending his wife’s business start-up, etc. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 15-02854 at 2 (App. Bd. Nov. 22, 2016). Neither has he shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-06686 at 2 (App. Bd. Apr. 27, 2016). Applicant cites to favorable comments in Department Counsel’s closing argument, for example Counsel’s view that Applicant has gone a long way toward resolving the Government’s concerns. Tr. at 78. Arguments by parties are not evidence. See, e.g., ISCR Case No. 14-03392 at 2, n.3 (App. Bd. Apr. 15, 2015). In the case before us, the record viewed as a whole supports the Judge’s decision. The Judge examined the relevant evidence 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.”

2 The record shows that the hearing took place on March 23, 2016. Tr. at 1. Order The Decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board