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ISCR Case 15-05647.a1denied

Case headnote

ISCR Case No. 15-05647.a1

May 14, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing herself, was denied clearance primarily due to significant financial issues under Guideline F (Financial Considerations). The denial was based on a long-standing history of financial problems, including multiple bankruptcies and tax delinquencies. Specifically, the judge cited disqualifying conditions F.3 and F.2, noting that the applicant's failure to file and pay taxes indicated a lack of compliance with government rules, raising concerns about her judgment and reliability.

While mitigating conditions F.1 and F.4 were considered, they were not sufficient to overcome the severity of the financial history. The applicant's arguments regarding favorable evidence and the "whole-person concept" were ultimately deemed unpersuasive by the judge.

The appeal board affirmed the denial, concluding that the judge's assessment was consistent with national security interests. The board found no error in the judge's determination that the applicant's financial history presented an unacceptable security risk.

Conditions referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts
F.2raisedDelinquent Debts

Mitigating

F.1rejectedThe Behavior Was Not RecentThe applicant's financial issues are ongoing and unresolved.
F.4rejectedThe Individual Has Received Counseling or AssistanceThe applicant's efforts to resolve financial issues were not sufficient to mitigate the concerns.

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 issuedNov 14, 2016
Answer filed—
Hearing heldJan 10, 2018
Decision dateMay 14, 2018

Cite for

Affirmation of Denial Based on Financial Considerations Under Guideline F
Whole-person Assessment Does Not Require Balancing Against Non-alleged Guidelines
Rebuttable Presumption That the Judge Considered All Evidence in the Record

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 after being denied due to financial considerations under Guideline F. The applicant argued that the Judge improperly applied the whole-person concept and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the assessment of the applicant's financial history and its implications for national security.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMichael H. Leonard denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant contends that the Judge's adverse decision was arbitrary, capricious, or contrary to law.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argues that the Judge improperly applied the whole-person concept.

Why the Board ruled this way

The Board found no error in the Judge's whole-person assessment and determined that the Judge's decision was sustainable on the record, given the applicant's long-standing financial issues and failure to comply with tax obligations.

Standard of review applied

No de-novo re-decisionNo new evidence on appealSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural compliance

Appeal Board panel

Michael Ra’anan (Chair)
Charles C. Hale
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 DIGEST: The Directive does not require that security concerns arising from admitted or proven SOR allegations under one or more of the guidelines be weighed or balanced against non-alleged guidelines in making a whole-person assessment. Adverse decision affirmed. CASENO: 15-05647.a1 DATE: 05/14/2018 DATE: May 14, 2018 In Re: ------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-05647

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 14, 2016, 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 January 10, 2018, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Michael H. Leonard 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 improperly applied the whole-person concept and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm.

The Judge found: Applicant does not dispute that she has a long-standing history of financial problems. The SOR alleged and Applicant admits the following matters: (1) a discharged Chapter 7 bankruptcy in 1997, a dismissed Chapter 13 bankruptcy in 2002, and a discharged Chapter 13 bankruptcy in 2005; (2) failure to timely file federal and state income tax returns for tax years 2011 through 2015; (3) approximately $17,000 in back taxes owed to the IRS for tax years 2011 through 2013; and (4) several past- due, collection, or charged-off accounts. Most of these matters remain unresolved.1 The Judge found in favor of Applicant on certain allegations and against her on others. We need not address Applicant’s allegations of error pertaining to alleged debts for which the Judge found in her favor. In her appeal brief, Applicant submits a number of documents, most of which post-date the Judge’s decision, showing her efforts to resolve her financial problems and makes representations about those documents. Those documents and representations constitute new evidence that the Appeal Board cannot consider. Directive ¶ E3.1.29. Applicant also contends that the Judge improperly applied the whole-person concept. She argues the Judge failed to consider the favorable evidence in her security clearance application pertaining to the non-alleged adjudicative guidelines. She argues the favorable evidence regarding those other guidelines outweigh the Guideline F security concerns and highlights that she has never had any security violations. Her arguments are unpersuasive. The Directive does not require that security concerns arising from admitted or proven SOR allegations under one or more of the guidelines be weighed or balanced against non-alleged guidelines in making a whole-person assessment. See, e.g., ISCR Case No. 15-05049 at 2-3 (App. Bd. Jul. 12, 2017). What the Directive requires in making a whole-person assessment is that “[a]ll available, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a national 1 Decision at 2. A footnote after the first sentence of this quote was omitted. security eligibility determination.” Directive, Encl. 2, App. A, ¶ 2(a). In this regard, we first note that there is a rebuttable presumption that the Judge considered all of the evidence in the record (See, e.g., ISCR Case No. 15-05049, supra, at 3); second, the Judge is not required to discuss each and every piece of record evidence, which would be a practical impossibility (Id.); and third, the Government does not need to wait until an applicant has compromised or mishandled classified information before it can deny the applicant a clearance (See, e.g., ISCR Case No. 14-04648 at 3 (App. Bd. Sep. 9, 2015)). Based upon our review of the record, we find no error in the Judge’s whole-person assessment in this case. Additionally, Applicant presents arguments that set forth the reasons for her financial problems and her efforts to resolve them. Her arguments, however, are neither enough to rebut the presumption that the Judge considered all of the evidence in the record nor 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. 15-04856 at 2-3 (App. Bd. March 9, 2017). The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on the record. As the Judge noted, Applicant’s failure to file and pay taxes when due suggests that she has a problem with complying with well-established government rules and regulations, which raises concerns about whether she has the high degree of judgment and reliability required for access to classified or sensitive information. Decision at 5-6. “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 ¶ 2.3 and Directive, Encl. 2, App. A, ¶ 2(b) (“Any doubt concerning personnel being considered for national security eligibility 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: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board