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ISCR Case 16-03103.a1 — CASE

ISCR Case 16-03103.a1denied

Case Headnote

ISCR Case No. 16-03103.a1

Jun 21, 2018· Hon. Charles C. Hale· appeal

Summary

A security clearance applicant, representing himself, was denied clearance primarily under Guideline F (Financial Considerations) and Guideline E (Personal Conduct). The denial stemmed from 14 delinquent student loans totaling approximately $65,000.

While the applicant admitted responsibility for these debts and presented some evidence of payments, the judge determined that he did not provide sufficient evidence to mitigate the security concerns. The applicant failed to meet his burden of proof to rebut the allegations against him, leading to the denial of his appeal.

Disqualifying conditions under Guideline F, specifically AG ¶ 20, were raised. Although mitigating conditions AG ¶ 21(a), (b), (c), (d), and (e) were considered, they were not found sufficient to overcome the security concerns. The clearance was ultimately DENIED.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21(a)rejectedThe Behavior Was Not RecentThe applicant's debts were ongoing and unresolved.
AG ¶ 21(b)rejectedThe Conditions That Resulted in the Behavior Were Beyond the Person's ControlThe applicant did not demonstrate that his financial issues were beyond his control.
AG ¶ 21(c)rejectedThe Person Has Received or Is Receiving Counseling for the ProblemNo evidence of counseling was presented.
AG ¶ 21(d)rejectedThe Person Has Established a Good Track Record of Debt RepaymentThe applicant only provided evidence of partial payments on a few loans.
AG ¶ 21(e)rejectedThe Person Has a Reasonable Plan for Debt RepaymentThe applicant's plan was not substantiated with adequate evidence.

Key Rule Quoted

“Having admitted the alleged student loans in his SOR Response, Applicant had the burden to present evidence to rebut, explain, extenuate, or mitigate the security concerns arising from those debts and had the ultimate burden of persuasion for obtaining a favorable clearance decision.”
— Directive ¶ E3.1.15.

Procedural Posture

SOR issuedNov 16, 2016
Answer filed—Applicant represented himself.
Hearing heldMar 1, 2018
Decision dateJun 21, 2018

Cite For

Burden of Proof in Financial Considerations Cases
Insufficient Evidence to Mitigate Financial Concerns
Impact of Delinquent Debts on Security Clearance Eligibility

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 and personal conduct. The Applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error and that the Applicant did not meet the burden of proof regarding his debts.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowArthur E. Marshall, Jr. — denied the clearance

Decided onthe written record

Guidelines belowGuideline EGuideline 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.

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 the Applicant failed to meet the burden of persuasion regarding the security concerns raised by his debts. The Board also noted that any errors made by the Judge were harmless and did not affect the outcome of the case.

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

James E. Moody
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 E; Guideline F DIGEST: The fact a debt no longer appears on a credit report does not establish any meaningful, independent evidence as to the disposition of the debt. Debts may fall off credit reports merely due to the passage of time. Having admitted the alleged student loans in his SOR Response, Applicant had the burden to present evidence to rebut, explain, extenuate, or mitigate the security concerns arising from those debts and had the ultimate burden of persuasion for obtaining a favorable clearance decision. Directive ¶ E3.1.15. We find no reason to disturb the Judge’s determination that Applicant failed to meet that burden. Adverse decision affirmed. CASENO: 16-03103.a1 DATE: 06/21/2018 DATE: June 21, 2018 In Re: -----------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-03103

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 16, 2016, 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 E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On March 1, 2018, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Arthur E. Marshall, Jr., 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. The Judge’s favorable findings under Guideline E have not been raised as an issue on appeal and are not further addressed below. Consistent with the following, we affirm the Judge’s decision. The Judge’s Findings of Fact and Analysis The SOR alleges that Applicant has 14 delinquent student loans totaling about $65,000. He admits responsibility for these accounts that arose during his college and post-graduate education. In his SOR Response, Applicant noted that a number of the credit report entries in question were from financial agencies that held the student loans in the past and no longer represent active or open accounts. He also stated, “I have been in contact with all of the current account holders and am in the process of setting up payment/payoffs for all of them in order to bring all accounts current.” Decision at 2, citing SOR Response. In his Response to Department Counsel’s File of Relevant Material (FORM), Applicant reported that he settled all of his student loans. He provided proof of payment of two student loans, one for about $3,900 and the other for about $2,800. The Judge found in his favor on those two student loans. In his FORM Response, Applicant provided an excerpt of a credit report (pages from Item 8 in the FORM), but his intent for submitting that excerpt without an explanation is less than obvious. The excerpt shows that two student loans continue to have outstanding balances. “Otherwise, the remaining entries in the credit report, without additional narrative description, fail to link to any of the other accounts set forth in the SOR.” Decision at 3. Applicant’s claim that his student loans are settled cannot be substantiated based on the credit report that he submitted. He receives partial credit for resolving two of the alleged student loans.

DISCUSSION

In his appeal brief, Applicant presented a credit report that post-dates the Judge’s decision. This credit report constitutes new evidence that the Appeal Board is prohibited from considering. Directive ¶ E3.1.29. Applicant also contends that the Judge erred in concluding “that I did not adequately show payment of roughly $64,000 of student loans, and that I had not shown sufficient diligence in handling my finances.” Appeal Brief at 1. We do not find Applicant’s argument persuasive. First, we note the excerpt of the credit report he provided with his FORM Response contains a handwritten note that appears to indicate a payment was made on a student loan. In the decision, the Judge discussed the handwritten note, stating “no documentary evidence of the payment was included.” Decision at 3, n.3. See, e.g., ISCR Case No. 15-03363 at 2 (App. Bd. Oct. 19, 2016) for the proposition that it is reasonable for a Judge to expect applicants to present documentation about the resolution of specific debts. We find no error in the Judge giving no weight to the handwritten note. Second, besides the payments towards the two student loans that the Judge found in Applicant’s favor, the excerpt also reflects three other payments towards student loans totaling about $10,700. In his decision, the Judge does not discuss those three payments. From our review of the record evidence, particularly the partial account numbers for the student loans involved and the amount of each of those payments, it is likely those payments were made towards and resolved three of the alleged student loans. While the Judge may have erred in failing to discuss those three payments, such an error was harmless because it likely had no affect on the outcome of the case. See, e.g., ISCR Case No. 11-15184 at 3 (App. Bd. Jul. 25, 2013). In this regard, we note that Applicant failed to provide proof of resolution for more than half of his alleged student loans, including one for over $14,000, another for over $9,000, and two for over $6,000. To the extent that Applicant is arguing that the absence of the student loans from subsequent credit reports shows their resolution, we do not find that argument persuasive. The fact a debt no longer appears on a credit report does not establish any meaningful, independent evidence as to the disposition of the debt. See, e.g., ISCR Case No. 14-03612 at 3 (Aug. 25, 2015). Debts may fall off credit reports merely due to the passage of time. See, e.g., ISCR Case No. 03-20327 at 6 (App. Bd. Oct. 26. 2006). Having admitted the alleged student loans in his SOR Response, Applicant had the burden to present evidence to rebut, explain, extenuate, or mitigate the security concerns arising from those debts and had the ultimate burden of persuasion for obtaining a favorable clearance decision. Directive ¶ E3.1.15. We find no reason to disturb the Judge’s determination that Applicant failed to meet that burden.

Applicant’s appeal brief fails to establish the Judge committed any harmful error. 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: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board