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ISCR Case 17-01915.a1 — CASE

ISCR Case 17-01915.a1denied

Case Headnote

ISCR Case No. 17-01915.a1

Nov 21, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A government contractor with a master's degree and military service was denied a security clearance under Guideline F (Financial Considerations) due to significant unresolved child support debt. The applicant's debt exceeded $35,500, and despite attempts to modify payment obligations, the judge expressed doubt regarding the applicant's future compliance, citing a history of failing to meet payment arrangements.

Disqualifying conditions under AG ¶ 20 were raised, while mitigating conditions under AG ¶ 21 were considered. However, the applicant did not provide proof of payments made after mid-2017, and the arrearage subsequently increased to approximately $42,000.

Ultimately, the judge concluded that the applicant had not demonstrated harmful error in the findings, leading to the denial of the security clearance. The decision highlighted the applicant's persistent financial irresponsibility and lack of consistent effort to resolve the substantial child support obligation.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe applicant's claims of new evidence regarding a court order were deemed insufficient to alter the decision.

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 issuedJun 21, 2017
Answer filed—
Hearing heldApr 2, 2018
Decision dateNov 21, 2018

Cite For

Denial of Security Clearance Due to Unresolved Child Support Debt Under Guideline F
Insufficient Evidence to Demonstrate Compliance with Payment Arrangements
Doubts About Applicant's Financial Responsibility Affecting 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 concerned the denial of a security clearance based on financial considerations under Guideline F. The applicant argued that evidence he submitted was not considered by the Judge. The Board affirmed the decision, finding no harmful error in the Judge's analysis and conclusions.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMark Harvey — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant contended that he submitted evidence that was not included in the record or considered by the Judge.

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 no harmful error in the Judge's decision, affirming that the record supported the Judge's findings and conclusions regarding the applicant's financial obligations.

Standard of review applied

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

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

KEYWORD: Guideline F DIGEST: We note the Judge’s statement in the analysis that he is not convinced that Applicant would abide by a different payment arrangement, insofar as he had failed to make sufficient child support payments in the past. Given the Judge’s analysis, we find no reason to conclude that, even if the document in question had been included in the record, it would have resulted in a different decision. Adverse decision affirmed. CASENO: 17-01915.a1 DATE: 11/21/2018 DATE: November 21, 2018 In Re: -------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 17-01915

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 June 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 hearing. On September 10, 2018, after the hearing, 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 he submitted evidence that was not included in the record or considered by the Judge. Consistent with the following, we affirm. The Judge’s Findings of Fact The Judge made the following pertinent findings of fact: Applicant has been employed as a Government contractor since 2015. He has a master’s degree. Applicant served in the military for seven years and later in the Reserves. He has two children, ages seven and nine. Applicant was unemployed from late 2013 until mid-2014. His current income is about $145,000. He pays about $1,000 a month in child support payments. Applicant’s SOR lists a child support debt of over $35,500. He had been unable to make his payments due to his period of unemployment. In 2015, the court increased Applicant’s monthly payments to about $1,580, with a specified amount going towards his arrearage. These payments were to be made by means of a wage lien. Applicant attempted unsuccessfully to get his payments reduced, and for a while he paid about $800 a month and has been paying $1,000 a month since 2016 or 2017. He is hoping to settle his arrearage. Applicant did not provide proof of payments after mid-2017, and his arrearage is now about $42,000. Three weeks before his security clearance hearing, Applicant hired an attorney to help resolve this debt. In May 2018, Applicant submitted to the court a request for a change to his child support obligation. The proposed amendment allows Applicant to make his child support payments directly to the mother. It requests the court terminate both his child support obligation and the arrearage. The Judge held the record open until September 2018 for Applicant to submit the signed order. However, the Judge did not receive post-hearing documentation from Applicant after May 2018.1 The Judge’s Analysis The Judge cleared Applicant on all of the SOR allegations except the one concerning child support, noting that Applicant did not explain why he paid reduced amounts of child support in 2017 and thereafter. Significantly, he stated that, even if Applicant had provided a new child support payment plan he was not convinced that Applicant would abide by it, citing to evidence that, in 2015, Applicant had been required to make his payments automatically from his salary but failed to comply.

DISCUSSION

Applicant contends that he submitted evidence that did not make it into the record. He states that he had a signed copy of a court order. This order removed his obligation to make child support payments to a state agency and abolished his arrearage to the agency. He states that he sent this document to the attorney who represented him at the hearing2 and that he sent a copy to the Judge as well. He contends that this document, had it been considered, would demonstrate mitigation of the one debt that the Judge resolved against him. Applicant’s brief contains new evidence, which we generally cannot consider. Directive ¶ E3.2.29. However, we will consider new evidence on threshold issues such as due process or jurisdiction. See, e.g., ISCR Case No. 17-01472 at 2 (App. Bd. Aug. 6, 2018). Applicant has attached to his brief a copy of a signed court order that removes his obligation to make payments to the state child support agency and that removes his arrearage to that agency. As he contends, this document is not part of the record. However, the record does contain a signed copy of the parties’ motion setting forth the proposed terms of the requested court order and the reasons therefor, along with an unsigned copy of a suggested order submitted for the court’s consideration and use. The final order that Applicant has included in his brief contains similar terms to those set forth in documents included in the record and that the Judge addressed in his decision. We note the Judge’s statement in the analysis that he is not convinced that Applicant would abide by a different payment arrangement, insofar as he had failed to make sufficient child support payments in the past.3 Given the Judge’s analysis, we find no reason to conclude that, even if the document in question had been included in the record, it would have resulted in a different decision.4 Therefore, even if this document failed to make it into the record due to fault by personnel at DOHA,5 any such error would be harmless. See, e.g., ISCR Case No.17-01181 at 4 (App. Bd. Apr. 30, 2018). We conclude that there is no reason to remand the case to the Judge to take in the additional evidence. We have examined Applicant’s brief in its entirety and conclude that he has not established harmful error by the Judge. 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 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: 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 The hearing occurred on April 2, 2018.

2 To the extent Applicant has a claim regarding a purported failure by his attorney, there is no relief available in this forum. A remedy, if there is one, would be found elsewhere. See, e.g., ISCR Case No. 03-21045 at 3 (App. Bd. Feb 21, 2007).

3 The written motion signed both by Applicant and the mother asserted that, while Applicant’s debt to the state child support agency would be removed, he would still be obligated to make arrearage payments directly to the mother. “[T]he parties have agreed that [Applicant] will now pay child support directly to the [mother], including an amount that will go toward the arrears.” (Emphasis added). Applicant’s Exhibit M. Therefore, while the evidence that Applicant has attached to his brief removes his liability to the state, it does not discharge the arrearage itself, it only changes the payee.

4 Moreover, even if an applicant has actually resolved a debt, the Judge may still consider the circumstances underlying the debt for what they reveal about the applicant’s eligibility for a clearance. See, e.g., ISCR Case No. 14- 02394 at 3-4 (App. Bd. Jun. 18, 2015).

5 Applicant states in his brief that he mailed a copy of this document to the Judge. He did not include a mailing receipt or some other document in corroboration. He also asserts that he was confused by the Judge’s having extended the date by which Applicant was to submit his additional evidence. Insofar as he claimed he mailed the court order within the time frame established by the Judge, we conclude that Applicant has not demonstrated any harm by virtue of the Judge’s actions. Indeed, extending the length of time within which an applicant may submit additional documentation is by definition favorable to the applicant.