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ISCR Case 17-00468 — CASE

ISCR Case 17-00468denied

Case Headnote

ISCR Case No. 17-00468

May 9, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A military veteran's security clearance was denied under Guideline F (Financial Considerations) due to significant unresolved delinquent debts totaling approximately $75,000. These debts included student loans and other obligations. The judge determined that the applicant's financial problems, specifically the acquisition of new delinquent debt after a bankruptcy discharge, raised concerns about his judgment and reliability.

Despite the applicant's honorable military service and some attempts to address his financial issues, the evidence presented was insufficient to mitigate these concerns. Only one of the debts was resolved through garnishment, indicating a lack of comprehensive effort to resolve the outstanding financial obligations.

Ultimately, the presence of substantial unresolved debt and the pattern of financial behavior led to the denial of the security clearance, as the disqualifying conditions under Guideline F.3 were not adequately overcome.

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 issuedMar 21, 2017
Answer filed—Pro se representation
Hearing held—
Decision dateMay 9, 2018

Cite For

Unresolved Financial Issues Under Guideline F
Judicial Bias Claims in Security Clearance Cases
Burden of Proof on the Applicant to Mitigate Security Concerns

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 who was denied a security clearance due to financial issues under Guideline F. The applicant argued that the Judge was biased and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error and that the Judge's conclusions were supported by the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowFrancisco Mendez — 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 contends that the Judge lacked impartiality and that the adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no evidence of bias and determined that the Judge's 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 appealDeference to the judge’s credibility calls

Appeal Board panel

Michael Ra’anan — Chair
James E. Moody
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

) In Re: )

) ---- ) ISCR Case No. 17-00468

)

) Applicant for Security Clearance )

)

KEYWORD: Guideline F DIGEST: Applicant contends that the Judge lacked impartiality. He states that the Judge’s purported narrow focus on his debts to the exclusion of favorable evidence demonstrates that the Judge had, in effect, an inflexible predisposition to deny clearances to those with financial problems. A review of the Decision as a whole provides no support for this argument. Adverse rulings alone do not demonstrate judicial bias. Applicant has not rebutted the presumption that the Judge went about his duties in an unbiased manner. Adverse decision affirmed. CASENO: 17-00468.a1 DATE: 05/09/2018 DATE: May 9, 2018

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 March 21, 2017, 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 January 2, 2018, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Francisco Mendez 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 was biased against him and 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 served in the military, deploying to a combat zone in support of U.S. operations. He received an honorable discharge upon the termination of his nine years of service. After leaving the military, Applicant received an undergraduate degree and later attended graduate school. Applicant and his wife have five children together. In 2006, Applicant was discharged in Chapter 7 bankruptcy. His current problems began in 2011, when Applicant left a prior employment under adverse circumstances. While unemployed, Applicant returned to school to enhance his job prospects. During this time, he defaulted on a significant amount of debt, including student loans. These loans total about $60,000 and the remainder about $15,000. One of Applicant’s creditors garnished his income, and this is the only SOR debt that has been resolved. Applicant told a clearance investigator that he had received collection notices regarding his debts and that he tried to resolve his student loan obligation. He stated that the creditor was not willing to establish a reasonable payment plan. Applicant enjoys a good reputation for the quality of his work performance as well as for his trustworthiness and reliability. The Judge noted evidence that Applicant acquired delinquent debt after having been discharged in bankruptcy. He stated that, despite gainful employment, Applicant had resolved only one of the SOR debts and that through garnishment. He concluded that Applicant’s circumstances raised concerns about his security eligibility that had not been mitigated.

DISCUSSION

Applicant contends that the Judge lacked impartiality. He states that the Judge’s purported narrow focus on his debts to the exclusion of favorable evidence demonstrates that the Judge had, in effect, an inflexible predisposition to deny clearances to those with financial problems.

However, a review of the Decision as a whole provides no support for this argument. Applicant is obviously disappointed with the overall results of his case. However, adverse rulings alone do not demonstrate judicial bias. See, e.g., ISCR Case No. 15-05047 at 3 (App. Bd. Nov. 8, 2017). See also Bixler v. Foster, 596 F.3d 751 at 762 (10th Cir. 2010). Applicant has not rebutted the presumption that the Judge went about his duties in an unbiased manner. Applicant cites to record evidence that he contends the Judge either mis-weighed or did not consider, for example his character references, the underlying circumstances of his debts, and his background (to include his military service and educational attainments). He argues that his years in the military and his subsequent college career show that he can indeed follow rules and regulations, contrary to the Judge’s ultimate conclusion. However, the Judge made findings about Applicant’s circumstances, including the things he had addressed in his brief. The concern under Guideline F is that unresolved delinquent debts may indicate that an applicant is lacking in judgment or self-control or that he or she may be unable to abide by rules and regulations. Directive, Encl. 2, App. A ¶ 18. See ISCR Case No. 15-01737 at 3 (App. Bd. Feb. 14, 2017). Given that Applicant acquired a substantial amount of delinquent debt after having previously been discharged in bankruptcy, and given that only one of the SOR debts has been resolved, the Judge did not err in concluding that Applicant’s circumstances raised the concerns outlined in Guideline F of the Directive. Indeed, the Directive presumes a nexus between admitted or proved conduct under any of the Guidelines and an applicant’s eligibility for a clearance. See, e.g., ISCR Case No. 15-06731 at 3 (App. Bd. Dec. 6, 2017).1 Moreover, the Judge did not err in his overall conclusion that Applicant had not mitigated these concerns. In a DOHA proceeding, it is the applicant who bears the responsibility to present evidence in mitigation of concerns raised in the SOR. Directive ¶ E3.1.15. Much of Applicant’s evidence in response to the File of Relevant Material consists of general character references and various documents from the military, such as certificates of training, award citations, etc., which do not address the actual concerns arising from Applicant’s financial problems.2 That the Judge did not find this evidence sufficient to justify a favorable decision is sustainable. A disagreement with the Judge’s weighing of the evidence or an ability to argue for an alternative interpretation of the record is not enough 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. 15-07062 at 2 (App. Bd. Nov. 21, 2017). We find no reason to conclude that the Judge mis-weighed the evidence or that he failed to consider all of the evidence in the record. See, e.g., ISCR Case No. 17-00257 at 3 (App. Bd. Dec. 7, 2017). The record supports a conclusion that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts

found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The Judge’s adverse 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 fornational 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board

FOOTNOTES

1 In addition to the evidence that Department Counsel submitted, we note that Applicant admitted all but one of the SOR allegations. These admissions alone are sufficient to raise security concerns.

2 Applicant’s response also includes a memorandum which, among other things, acknowledges his delinquent debts but does not include evidence of actual debt resolution.