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ISCR Case 15-07237.a1 — CASE

ISCR Case 15-07237.a1denied

Case Headnote

ISCR Case No. 15-07237.a1

Feb 12, 2018· Hon. Charles C. Hale· appeal

Summary

A defense contractor, employed since 2005, was denied a security clearance under Guideline F (Financial Considerations) due to multiple delinquent debts. These included several charged-off credit card accounts and an unpaid medical bill.

The applicant claimed he would have requested a hearing if he had fully understood the evidence against him. However, the judge found no evidence that the applicant had sought financial counseling or demonstrated responsible efforts to address his financial issues.

Ultimately, the applicant failed to provide corroborating evidence of debt resolution or his current financial status. Consequently, the judge concluded that the applicant did not mitigate the security concerns raised by his financial history, leading to the denial of his appeal and the security clearance.

Conditions Referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts

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 issuedSep 29, 2016
Answer filed—Applicant requested a decision on the written record.
Hearing heldOct 27, 2017
Decision dateFeb 12, 2018

Cite For

Denial Based on Numerous Delinquent Debts Under Guideline F
Lack of Evidence for Financial Counseling as a Mitigating Factor
Applicant's Responsibility to Present Corrective Evidence in Response to SOR

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's decision was arbitrary and capricious, claiming he would have opted for a hearing had he understood the evidence presented. The Board affirmed the Judge's decision, finding it supported by substantial evidence and consistent with the law.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowLeRoy F. Foreman — denied the clearance

Decided onthe written record

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 findings were supported by substantial evidence and that the decision was not arbitrary or capricious. The Applicant was deemed to have made a knowing and intelligent choice regarding the administrative determination process.

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
Charles C. Hale
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: Regarding Applicant’s claim that he would have chosen a hearing if he had understood what would be presented to the Judge. Applicant received the FORM which consisted of a Department Counsel memo and accompanying evidence. Both the FORM and the cover letter clearly stated that the contents of the FORM would be presented to the Judge for his consideration and that Applicant could submit a response setting forth objections or anything else he wanted to present. There is no reason to believe that Applicant was mis-advised about the evidence the Judge would consider, nor that Applicant’s choice of an administrative determination was other than knowing and intelligent. Although pro se applicants are not held to the standards of lawyers, they are expected to take reasonable steps to protect their rights. Adverse decision affirmed. CASENO: 15-07237.a1 DATE: 02/12/2018 DATE: February 12, 2018 In Re: --------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-07237

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 September 29, 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 decision on the written record. On October 27, 2017, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge LeRoy F. Foreman 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 and Analysis Applicant has worked for Defense contractors since 2005 and has held a clearance since 2007. He experienced unemployment from late 2009 to January 2010. Applicant’s SOR listed numerous delinquent debts. The Judge resolved five of them against him–four credit card accounts and a medical bill. The credit card debts had been charged off. Applicant claimed that he may have paid off the medical bill, but he provided no corroboration. Applicant did not submit evidence of his current income or expenses. However, an IRS tax transcript showed that his income for 2009 was nearly $140,000 and for 2015 was over $182,000. The Judge concluded that Applicant’s debts are numerous and recent. Though noting that Applicant had hired a debt management company to assist him in resolving his financial problems, the Judge found no evidence that he received actual financial counseling. Applicant submitted no evidence of responsible conduct for the five debts described above. The Judge concluded that Applicant had not mitigated the concerns arising from these debts.

DISCUSSION

Applicant argues that the Judge’s findings of fact contain errors and that his Response to the SOR showed that he had addressed all of his debts. He asserts that, had he known that inaccurate information would be before the Judge, he would have requested a hearing. We have examined the Judge’s findings of fact in light of the record that was before him. The Judge resolved some of Applicant’s debts in his favor, for example allegations that he failed to pay income tax for 2009 and 2012. The Judge’s adverse findings are consistent with the record, in particular Applicant’s Response to the SOR and his clearance interview summary.1 If Applicant believed that the SOR or other documents in the File of Relevant Material (FORM) contained errors, it was his responsibility to present corrective evidence. See Directive ¶ E3.1.7, which sets forth an applicant’s responsibility for presenting objections, rebuttal, extenuation, mitigation or explanation to matters contained in the FORM. As it stands, the Judge’s material findings of security concern are based upon substantial evidence or constitute reasonable inferences from the evidence. See, e.g., ISCR Case No. 14-04724 at 3 (App. Bd. Aug. 18, 2017). Regarding Applicant’s claim that he would have chosen a hearing if he had understood the nature of what would be presented to the Judge, we note that Applicant received the FORM on December 8, 2016. The FORM consisted of a Department Counsel memo and accompanying evidence–the SOR and Applicant’s Response thereto; the security clearance application; Applicant’s interrogatory answers, which include an authenticated copy of Applicant’s clearance interview; and a credit report. Both the FORM and the cover letter clearly stated that the contents of the FORM would be presented to the Judge for his consideration and that Applicant could submit a response setting forth objections or anything else he wanted to present. There is no reason to believe that Applicant was mis-advised about the evidence the Judge would consider, nor is there any reason to believe that Applicant’s choice of an administrative determination was other than knowing and intelligent. Although pro se applicants are not held to the standards of lawyers, they are expected to take reasonable steps to protect their rights. See, e.g., ISCR Case No. 15-05047 at 4 (App. Bd. Nov. 8, 2017). Applicant’s brief includes a copy of the SOR Response. To the extent that Applicant is arguing that the Judge did not consider it, he has failed to rebut the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 17-00257 at 3 (App. Bd. Dec. 7, 2017). 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, 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board

FOOTNOTES

1 Applicant’s SOR Response notes that his credit card accounts have been charged off. That a creditor is no longer actively seeking payment or that a debt is not otherwise collectable does not establish that the debt has been resolved within the meaning of the Directive. See, e.g., ISCR Case No. 10-03656 at 3 (App. Bd. Jan. 19, 2011).