CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 17-03372.a1 — CASE

ISCR Case 17-03372.a1denied

Case Headnote

ISCR Case No. 17-03372.a1

Oct 19, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied clearance under Guideline F (Financial Considerations) due to six delinquent debts totaling approximately $39,000. The applicant admitted to two debts stemming from a failed business venture but denied the remaining four without providing adequate supporting documentation.

The denial was upheld because the applicant failed to present specific claims of error regarding the judge's decision during the appeal process. His pro se status did not exempt him from the requirement to raise such specific claims. Furthermore, the applicant's inconsistent statements regarding the delinquent debts were noted as undermining his credibility.

Ultimately, the appeal was denied, affirming the initial decision to deny the security clearance.

Conditions Referenced

Disqualifying

F.1raisedFinancial Considerations

Key Rule Quoted

“There is no presumption of error below, and the appealing party has the burden of raising and demonstrating factual or legal error by the Administrative Judge.”
— ISCR Case No. 00-00339 (March 22, 2001)

Procedural Posture

SOR issuedOct 13, 2017
Answer filed—
Hearing heldJul 27, 2018
Decision dateOct 19, 2018

Cite For

Insufficient Specificity in Claims of Error on Appeal
Pro Se Applicants Must Still Meet Specific Claim Requirements
Contradictory Statements Regarding Debts Can Undermine Credibility

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 filed by the Applicant, who sought to overturn an adverse decision denying a security clearance based on financial considerations. The Board affirmed the decision, finding that the Applicant did not provide specific claims of error necessary for review.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPaul J. Mason — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant did not raise specific claims of factual or legal error.

Why the Board ruled this way

The Board found that the Applicant did not raise specific claims of error, which is necessary for a successful appeal. The appeal was affirmed based on the lack of specificity in the claims made by the Applicant.

Standard of review applied

No de-novo re-decisionNo new evidence on appealHarmful-error gatekeeper

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 has not made a claim of factual or legal error with sufficient specificity to permit review on appeal. Applicant’s pro se status does not relieve him of the obligation to raise specific claims of error. Even though a pro se applicant’s brief cannot be expected to meet the standards expected of a lawyer’s brief, he or she must set forth specific claims of error. Adverse decision affirmed. CASENO: 17-03372.a1 DATE: 10/19/2018 DATE: October 19, 2018 In Re: -------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 17-03372

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 13, 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 July 27, 2018, after considering the record, Administrative Judge Paul J. Mason 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 The SOR alleged that Applicant had six delinquent debts totaling about $39,000. They became delinquent between 2012 and 2014. He admitted the two largest debts that were the result of a failed business venture. In his background interview, he indicated that he did not intend to do anything regarding one of those debts because it was charged off. In early 2018, however, his debt repair firm advised that the creditor agreed to settle the account for 12 monthly payments. No settlement letter was submitted, but he provided confirmation of making one monthly payment. He did not intend to address the other admitted business debt because it was charged off and no longer was listed on his credit report. Applicant denied the remaining alleged debts for various reasons. He claimed $2,000 in fraudulent charges were made on one credit card account and the creditor told him it would pay the charges. In 2015, a collection agency filed a legal action against him for the balance, but that action was later dismissed. He claimed his credit repair firm would have the account removed from his credit report. In early 2018, the credit repair firm indicated the creditor accepted a settlement check of about $1,500, but no documentation of payment was provided. He claimed another debt resulted from a stolen credit card; however, the record contains letters from a collection agency describing Applicant’s settlement agreement and resolution of the debt. He claimed that a judgment against him was in the name of his former business, but provided no proof it has been removed from his credit report. He claimed his was disputing a bank debt but provided no supporting documentation. The Judge noted that Applicant had over $500,000 in assets. In his analysis, the Judge stated, “The primary reason that Applicant’s security clearance application cannot be granted at this time is based on the contradictory positions he has taken about the delinquent debts during the security clearance process.” Decision at 7. The Judge also concluded that “Applicant’s documented evidence of full satisfaction of only one of six SOR accounts and uncorroborated claims of paying on the other accounts, is insufficient to overcome the ongoing security concerns engendered by the financial considerations guideline.” Decision at 7-8.

DISCUSSION

Applicant’s appeal basically consists of one sentence, i.e., “Specific Claims of factual error: Incorrect information was used for the judge’s determination.” Appeal Brief at 1. In making that claim, Applicant also references documents attached to his brief. Some of those documents are not in the record and post-date the Judge’s decision. The Appeal Board cannot consider new evidence on appeal. Directive ¶ E3.1.29. Applicant’s brief fails to identify any specific error and also fails to explain how the attached documents that are in the record relate to his claim of error. As the Appeal Board has previously stated: There is no presumption of error below, and the appealing party has the burden of raising and demonstrating factual or legal error by the Administrative Judge. See, e.g., ISCR Case No. 00-00339 (March 22, 2001) at p. 3. Furthermore, the appealing party must set forth its claims of error with specificity. See, e.g., ISCR Case No. 99- 0519 (February 23, 2001) at p. 9. The requirement that the appealing party raise issues with specificity serves some important purposes. First, the appealing party must provide specificity in its claims of error so that the nonappealing party can have a reasonable opportunity to respond to those claims of error, and the Board can discern what the appealing party is claiming to be factual or legal error by the Judge. See, e.g., ISCR Case No. 99-0295 (October 20, 2000) at pp. 3-4. Second, the Board does not review cases de novo. Rather, the Board is limited to reviewing a Judge's decision under the terms of the Directive, Additional Procedural Guidance, Item E3.1.32. ("The Appeal Board shall address the material issues raised by the parties to determine whether harmful error occurred.")(italics added) See also ISCR Case No. 99-0519 (February 23, 2001) at p. 9. If an appealing party fails to make any specific claim of factual or legal error, the Board cannot assume the role of surrogate advocate and search the record below and the Judge's decision to ferret out possible error. Third, the Board cannot engage in reasoned decision-making when carrying out its appellate responsibilities unless the appealing party provides some specificity to its claims of factual or legal error. The Board cannot be expected to guess what an appealing party believes is factual or legal error by the Judge. Fourth, unless the appealing party raises claims of error with some specificity, the Board could waste its time (and prejudice the nonappealing party) by addressing matters that the appealing party may not believe involve error by the Judge.1 In this case, Applicant has not made a claim of factual or legal error with sufficient specificity to permit review on appeal. Applicant’s pro se status does not relieve him of the obligation to raise specific claims of error. Even though a pro se applicant’s brief cannot be expected to meet the standards expected of a lawyer’s brief, he or she must set forth specific claims of error. See, e.g., ISCR Case No. 00-0050 at 3. Here, Applicant has failed to allege adequately that the Judge committed an error in his decision. 1 ISCR Case No. 00-0050 at 2-3 (App. Bd. Jul. 23, 2001).

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