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ISCR Case 17-02918.a1 — CASE

ISCR Case 17-02918.a1denied

Case Headnote

ISCR Case No. 17-02918.a1

Sep 17, 2018· Hon. Charles C. Hale· appeal

Summary

A self-employed defense contractor and military veteran was denied a security clearance due to concerns under Guideline F (Financial Considerations) and Guideline E (Personal Conduct). The applicant acknowledged financial difficulties, attributing them to a divorce and a period of unemployment.

However, the applicant did not provide sufficient evidence of debt repayment or effectively challenge the judge's initial findings. The judge concluded that none of the potential mitigating conditions, specifically AG ¶ 21 and AG ¶ 22, applied in this case due to the lack of evidence demonstrating resolution of the debts.

The appeal board affirmed the denial, finding substantial evidence to support the judge's decision. The disqualifying condition raised was AG ¶ 20, and the applicant ultimately failed to overcome the concerns regarding his financial conduct and personal responsibility.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe applicant did not provide evidence of payment of debts.
AG ¶ 22appliedPersonal Conduct

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 issuedOct 27, 2017
Answer filed—Applicant withdrew request for hearing.
Hearing heldJun 13, 2018Decision made on written record.
Decision dateSep 17, 2018

Cite For

Affirmation of Adverse Decision Based on Financial Concerns Under Guideline F
Insufficient Evidence of Debt Repayment as a Basis for Denial
Standard for Granting Clearance Related to National Security Interests

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 from 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 but did not identify any harmful error. The Board affirmed the Judge's decision, finding it supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPhilip J. Katauskas — 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.
No specific harmful error alleged — raised by the applicantRejected
Applicant did not cite to a harmful error in the Judge's decision.

Why the Board ruled this way

The Board found that the Judge's material findings were based on substantial evidence and that the Applicant did not cite any harmful error in the Judge's decision. The adverse decision was affirmed as sustainable on the record.

Standard of review applied

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

Appeal Board panel

James E. Moody
James F. Duffy
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 E; Guideline F DIGEST: We conclude that the Judge’s material findings are based upon substantial evidence or constitute reasonable inferences from the evidence. Applicant has not cited to a harmful error in the Judge’s decision. Adverse decision affirmed. CASENO: 17-02918.a1 DATE: 09/17/2018 DATE: September 17, 2018 In Re: ---------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 17-02918

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 October 27, 2017, 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 hearing, which he subsequently withdrew, requesting instead a decision on the written record. On June 13, 2018, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Philip J. Katauskas 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 are not at issue in this appeal. Consistent with the following, we affirm. The Judge’s Findings of Fact and Analysis Applicant is divorced. He has three sons, two of whom live with his former spouse. Applicant served on active duty in the U.S. military, as well as in the reserves. Since August 2011 he has been self-employed as a Defense contractor. His SOR lists four delinquent debts plus a Chapter 13 bankruptcy filing that was eventually dismissed. Applicant admitted the debts and also admitted the bankruptcy allegation with an explanation. He advised that he had signed the bankruptcy petition in an effort to avoid foreclosure on his house. Applicant attributed his financial problems to a divorce, loss of employment, and inability to find subsequent employment at an equivalent level of compensation. The Judge noted Applicant’s divorce and unemployment, which were beyond his control. He stated, however, that Applicant had submitted no documents to show that he had paid his delinquent debts. The Judge concluded that none of the mitigating conditions apply.

DISCUSSION

Applicant states that he has two additional children, both of whom are from his relationship with his fiancée, that were not noted in the Judge’s decision. Other than that, he does not challenge the Judge’s findings of fact. We conclude that the Judge’s material findings are based upon substantial evidence or constitute reasonable inferences from the evidence. Applicant has not cited to a harmful error in the Judge’s decision. See, e.g., ISCR Case No. 16-02640 at 3 (App. Bd. Jul. 2, 2018). Applicant cites to his many years of employment, his having held a clearance without incident or concern, the care he takes with his finances, and the underlying circumstances for his failure to have made sufficient payment on his child support obligations.1 Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record, nor has he shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 17-02391 at 4 (App. Bd. Aug. 7, 2018). Applicant notes the financial difficulties he has experienced because he has lost his clearance. However, the Directive does not permit us to consider the impact that an unfavorable decision may have upon an applicant. See, e.g., ISCR Case No. 17-01950 at 2 (App. Bd. Aug. 7, 2018). 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: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board Signed: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board

FOOTNOTES

1 The SOR identifies the creditors for the four debts that it alleges, but it does not specify what the underlying purpose of the debt was. It is not clear whether any of the debts were for child support.