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ISCR 15-02481.a1: Guideline F security clearance appeal, denied (2017) · CASE

ISCR Case 15-02481.a1denied

Case headnote

ISCR Case No. 15-02481.a1

Jan 31, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

This security clearance application was denied under Guideline F (Financial Considerations) and Guideline J (Criminal Conduct). The applicant, representing himself, had multiple delinquent debts totaling approximately $10,608. Additionally, the applicant's criminal history included two domestic assault and battery convictions and a misdemeanor bogus check offense.

The judge found that the applicant failed to provide sufficient evidence to support any mitigating conditions for these issues. Specifically, there was a noted lack of progress in resolving the outstanding debts, including a long-standing medical collection.

Ultimately, the appeal was denied. The judge's findings regarding Guideline J (Criminal Conduct) were deemed sufficient to uphold the denial, making any further consideration of issues under Guideline F (Financial Considerations) moot.

Conditions referenced

Disqualifying

AG ¶ 20raisedCriminal Conduct
AG ¶ 19raisedFinancial Considerations

Key rule quoted

“There is no presumption of error below.”
ISCR Case No. 04-08312 at 2 (App. Bd. July 14, 2005)

Procedural posture

SOR issuedNov 6, 2015
Answer filed—
Hearing heldNov 10, 2016Decision on the written record.
Decision dateJan 31, 2017

Cite for

Insufficient Evidence for Mitigating Conditions Under Guideline F
Impact of Criminal History on Security Clearance Decisions
Harmless Error Principle in 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 concerned the denial of a security clearance based on financial considerations and criminal conduct. The applicant raised issues regarding two debts under Guideline F but did not contest the findings under Guideline J. The Board affirmed the decision, finding that the Judge's conclusions were supported by evidence and that any errors related to Guideline F were harmless due to the adverse findings under Guideline J.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDavid M. White denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantError found, but harmless
Applicant contended that the Judge ignored evidence regarding his efforts to resolve two debts.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argued that the Judge's decision was arbitrary and capricious.

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 decision was supported by substantial evidence and that any alleged errors regarding Guideline F were harmless due to the findings under Guideline J.

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)
William S. Fields
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 and Guideline J DIGEST: Applicant’s assertions in his appeal only concern two debts alleged under Guideline F. This case also included formal findings against Applicant under Guideline J, and Applicant raised no issues regarding those findings. There is no presumption of error below. See, e.g., ISCR Case No. 04-08312 at 2 (App. Bd. July 14, 2005). As the Judge’s adverse decision is fully supported by his formal findings under Guideline J, any errors involving matters relating to Guideline F are harmless. CASENO: 15-02481.a1 DATE: 01/31/2017 DATE: January 31, 2017 In Re: ----------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-02481

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 6, 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 J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On November 10, 2016, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge David M. White denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The SOR alleged Applicant had 13 delinquent debts totaling about $10,608, two domestic assault and battery arrests (2013 and 2014), and a conviction for a misdemeanor bogus check offense in 2008. In his findings, the Judge noted that Applicant was convicted of both domestic assault and battery offenses based on his guilty pleas. The Judge found against Applicant on all of the SOR allegations. He concluded that Applicant offered insufficient evidence to support any of the mitigating conditions. He specifically noted Applicant demonstrated no progress toward debt resolution, failing to resolve even a $50 medical collection that had been delinquent since 2009. In his appeal, Applicant contends that he told an investigator during an interview that he was making back child support payments and would soon be caught up. He also claimed he told the investigator that he would be going to court over another account and it would be resolved. He stated that resolution of these two debts would lower his indebtedness by about $5,000, and he thought a hearing was not necessary because those two debts were being addressed.1 In the decision, the Judge ruled the summary of Applicant’s interview with the Office of Personnel Management investigator was not admissible under Directive ¶ E3.1.20 because it was neither attested to nor adopted by Applicant. Even if the Judge had considered the interview, it is not likely that it would have changed the result. In the summary of the interview, Applicant is reported to have stated he was making child support payments, but they had stopped and he was expecting them to restart when collection responsibility was transferred from one state to another. The summary of the interview makes no reference to a court proceedings regarding the other debt. Applicant’s assertions in his appeal only concern two debts alleged under Guideline F. This case also included formal findings against Applicant under Guideline J, and Applicant raised no issues regarding those findings. There is no presumption of error below. See, e.g., ISCR Case No. 04-08312 at 2 (App. Bd. July 14, 2005). As the Judge’s adverse decision is fully supported by his formal findings under Guideline J, any errors involving matters relating to Guideline F are harmless. 1 Applicant’s appeal brief contains documents that were not previously submitted to the Judge. Those documents constitute new evidence that the Appeal Board can neither receive nor consider. See, Directive ¶ E3,1.29.

ORDER

The decision of the Judge 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 F. Duffy James F. Duffy Administrative Judge Member, Appeal Board