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ISCR Case 16-01559.a1 — CASE

ISCR Case 16-01559.a1denied

Case Headnote

ISCR Case No. 16-01559.a1

Feb 12, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

The applicant was denied a U.S. security clearance under Guideline F, Financial Considerations, due to unresolved financial issues. These issues included delinquent debts and a failure to file tax returns, which raised disqualifying conditions F.3 and F.2. The applicant represented himself throughout the process.

Despite the potential application of mitigating conditions F.1 and F.2, the appeal board affirmed the denial. The board found that the applicant did not provide sufficient documentary evidence to mitigate the financial concerns outlined in the Statement of Reasons. Furthermore, the applicant's arguments failed to demonstrate that the judge's initial decision was arbitrary or contrary to law.

Ultimately, the denial was upheld because the applicant did not respond to the allegations with corroborating documentation, leaving the financial concerns unaddressed and unmitigated.

Conditions Referenced

Disqualifying

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

Mitigating

F.1rejectedThe Behavior Was Not RecentThe applicant's financial issues were ongoing and unresolved.
F.2rejectedThe Conditions That Resulted in the Financial Problems Were Beyond the Applicant's ControlWhile some circumstances were outside the applicant's control, he did not provide evidence of resolution.

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 1, 2016
Answer filed—Applicant was pro se.
Hearing heldOct 12, 2017Decision made on the written record.
Decision dateFeb 12, 2018Appeal affirmed.

Cite For

Insufficient Evidence to Mitigate Financial Concerns Under Guideline F
Applicant's Burden to Present Evidence in Mitigation
Whole-person Analysis in Security Clearance Decisions

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 was brought by the applicant after the DoD denied his request for a security clearance based on 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 that the applicant did not provide sufficient evidence to mitigate the financial concerns raised against him.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMark Harvey — 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 did not err in his whole-person analysis and that the applicant failed to provide sufficient evidence to mitigate the financial concerns raised in the SOR. The decision was supported by substantial evidence and was not arbitrary or capricious.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealBurden of persuasion

Appeal Board panel

Michael Y. Ra’anan — Chair
James E. Moody
Charles C. Hale

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’s arguments are not enough to rebut the presumption that the Judge considered all of the evidence in the record, nor are they sufficient to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Adverse decision affirmed. CASE NO: 16-01559.a1 DATE: 02/12/2018 DATE: February 12, 2018 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-01559

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 1, 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 12, 2017, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Mark Harvey 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’s SOR listed several delinquent debts, including two tax liens for about $15,000 and $6,600 respectively, four judgments, medical debts, etc. It also alleged that Applicant failed to file his tax returns from at least tax year 2010. He has also failed to file or pay taxes for 2011 and cannot recall if he filed returns for 2010, 2012, or 2013. He intends to file his returns for 2014. Applicant attributed his financial problems to medical bills, job loss, and reduction in salary. Although the File of Relevant Material advised Applicant that there was no corroborating documentation regarding the SOR allegations, he did not make a response. Though noting circumstances outside Applicant’s control that affected his financial condition, the Judge cited to Applicant’s failure to provide documentary evidence about his efforts to resolve the concerns raised in the SOR. He stated that there is insufficient evidence that Applicant’s problems are being resolved.

DISCUSSION

Applicant cites to his medical problems and his period of unemployment without health insurance. He argues that he is trustworthy and that his eligibility for a clearance should not rest upon only a difficult portion of his life, thereby contending that the Judge did not properly apply the whole-person concept. Applicant’s arguments are not enough to rebut the presumption that the Judge considered all of the evidence in the record, nor are they 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. 17-00257 at 3 (App. Bd. Dec. 7, 2017). Applicant’s brief includes references to matters from outside the record. We cannot consider new evidence on appeal. Directive ¶ E3.1.29. Given the record that was before him, we conclude that the Judge did not err in his whole- person analysis, in that he considered the totality of the record evidence. See, e.g., ISCR Case No. 15-03592 at 2 (App. Bd. Jun. 14, 2017). In a DOHA proceeding, it is the applicant’s responsibility to present evidence in mitigation, extenuation, explanation, etc. Directive ¶ E3.1.15. Applicant was placed upon sufficient notice that the record as it stood lacked documentary evidence to show that the allegations in the SOR were being resolved, yet he submitted nothing. The Judge’s conclusion that Applicant had failed to meet his burden of persuasion as to mitigation is supportable. 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: 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: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board