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ISCR Case 17-02852.a1 — CASE

ISCR Case 17-02852.a1denied

Case Headnote

ISCR Case No. 17-02852.a1

Jun 13, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied under Guideline F (Financial Considerations) due to unresolved financial issues. The applicant had eight delinquent debts totaling approximately $52,300.

The applicant's claims of actively working to resolve these debts were not supported by sufficient evidence. Furthermore, the financial difficulties themselves were not adequately explained or documented.

Consequently, the adjudicator found that the applicant failed to mitigate the security concerns raised by his financial situation, leading to the denial of his security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedFinancial Considerations
AG ¶ 20(c)raisedFinancial Considerations

Mitigating

AG ¶ 20(d)appliedFinancial ConsiderationsThe applicant consolidated his student loans and developed a payment plan, but the first payment was not due until after his FORM response.

Key Rule Quoted

“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 issuedAug 24, 2017
Answer filed—Applicant requested a decision on the written record.
Hearing heldMar 20, 2018
Decision dateJun 13, 2018

Cite For

Failure to Substantiate Claims of Debt Resolution Under Guideline F
Importance of Providing Documentation for Financial Claims
The Role of the Judge as an Impartial Fact-finder in Security Clearance Cases.

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 did not fully investigate his financial situation. The Board affirmed the Judge's decision, finding no harmful error in the analysis of the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMarc E. Curry — 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 the Judge did not fully investigate his financial situation.

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 findings were based on substantial evidence and that the Judge did not err in his analysis of the evidence. The Judge's decision was affirmed as it was consistent with national security interests.

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

KEYWORD: Guideline F DIGEST: Applicant contends the Judge did not fully investigate his financial situation. However, a Judge has no authority to act as an investigator in a security clearance adjudication. Any attempt by a Judge to serve as an investigator would conflict with his or her role as an impartial fact-finder. Adverse decision affirmed. CASENO: 17-02852.a1 DATE: 06/13/2018 DATE: June 13, 2018 In Re: -----------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 17-02852

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 August 24, 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 March 20, 2018, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Marc E. Curry 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 eight delinquent debts, including two state tax debts totaling about $2,300 and five student loans totaling about $50,000. His security clearance application lists two periods of unemployment, both for about three years. His most recent period of unemployment ended in the spring of 2015. Applicant indicated he arranged a payment plan for a debt, but was unable to make the payments. In late 2017, Applicant consolidated his student loans and arranged a payment plan that provides for monthly payments of about $20. “He contends that he is ‘vigorously working towards reducing and paying of [his] debt . . .,’ but provided no additional documentary proof.” Decision at 2, citing Applicant’s File of Relevant Material (FORM) response. Applicant did not provided any details about his periods of unemployment or financial difficulties. No evidence was presented that Applicant received financial counseling or arranged a payment plan for the delinquent state tax debts. He receives partial credit under mitigating condition 20(d) for consolidating his student loans and developing a payment plan, but the first payment was not due until after his FORM response.1 Applicant has not mitigated the financial security concerns.

DISCUSSION

In his appeal brief, Applicant made statements and submitted documents that were not previously provided to the Judge for consideration. Those statements and documents constitute new evidence that the Appeal Board cannot consider. Directive ¶ E3.1.29. Applicant contends the Judge did not fully investigate his financial situation. However, a Judge has no authority to act as an investigator in a security clearance adjudication. Any attempt 1 Directive, Encl. 2, App. A ¶ 20(d) states, “the individual initiated and is adhering to a good-faith effort to repay overdue creditors or otherwise resolve debts[.]” by a Judge to serve as an investigator would conflict with his or her role as an impartial fact-finder. See, e.g., ISCR Case No. 14-00434 at 3 (App. Bd. Jan. 20, 2015). A credit report in the record (FORM Item 4) establishes the alleged debts. See, e.g., ISCR Case No. 08-012184 at 7 (App. Bd. Jan. 7, 2010) (It is well settled that adverse information in a credit report can normally meet the substantial evidence standard and the Government’s obligation under Directive ¶ E3.1.14 for establishing a controverted debt allegation). Once a controverted SOR allegation is proven, the burden shifted to Applicant to present evidence to rebut, explain, extenuate, or mitigate the established security concern, and he also had the ultimate burden of persuasion as to obtaining a favorable clearance decision. Directive ¶ E3.1.15. Applicant also contends that he had provided proof of paying his debts and of having made repayment agreements. The Appeal Board has previously noted that it is reasonable for a Judge to expect applicants to present documentation about the resolution of specific debts. See, e.g., ISCR Case No. 15-03363 at 2 (App. Bd. Oct. 19, 2016). After reviewing the record in this case, the Board concludes that the Judge’s material findings about Applicant’s debts are based on substantial evidence or constitute reasonable conclusions or inferences that could be drawn from the record. Id. In his response to the SOR, Applicant denied each of the debts and did not provide any narrative comments or documents regarding the debts. In his FORM response, Applicant provided a narrative statement about his efforts to resolve the debts and also submitted state correspondence pertaining to a child support case, two credit reports, and documents concerning his payment plan for the student loans. None of those documents show that Applicant made any recent payments toward the alleged debts.2 Applicant has not established that the Judge committed any harmful error in his analysis of the evidence. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on the 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 ¶ 2.3 and 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.”) 2 The credit reports reflected that the delinquent student loan in SOR ¶ 1.h. for about $1,700 was closed, had a zero balance, and the remarks section stated, “Affected by natural disaster.” FORM response. While the Judge may have erred in failing to address this credit report entry in the decision, such an error was harmless because it did not likely affect the outcome of the case. See, e.g., ISCR Case No. 11-15184 at 3 (App. Bd. Jul. 25, 2013). The debt in SOR ¶ 1.h. is not significant in comparison to Applicant’s other financial problems.

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