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ISCR Case 18-00754.a1 — CASE

ISCR Case 18-00754.a1denied

Case Headnote

ISCR Case No. 18-00754.a1

Jun 17, 2019· Hon. Michael Y. Ra'anan· appeal

Summary

A married military veteran with two children was denied a security clearance under Guideline F (Financial Considerations) due to significant delinquent debts totaling approximately $104,000. The applicant partially admitted to these debts.

Despite filing for Chapter 13 bankruptcy, the appeal board determined that the applicant had not demonstrated responsible management of his financial obligations. The board noted a failure to take responsible action regarding the debts before the bankruptcy filing.

The ongoing and uncontrolled nature of the applicant's financial problems raised concerns about his reliability and trustworthiness, leading to the denial of his security clearance. Disqualifying conditions F3 and F2 were raised, and mitigating conditions F3 and F2 were applied, but ultimately the clearance was denied.

Conditions Referenced

Disqualifying

F3raisedInability or Unwillingness to Satisfy Debts
F2raisedDelinquent Debts

Mitigating

F3rejectedThe Individual Has Made a Good Faith Effort to Repay Overdue Creditors or Otherwise Resolve DebtsThe applicant did not show sufficient evidence of responsible action regarding his debts.
F2rejectedThe Conditions That Resulted in the Financial Problems Were Largely Beyond the Person's ControlWhile unforeseen events impacted the applicant's finances, he failed to act responsibly.

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 23, 2018
Answer filed—
Hearing heldApr 11, 2019
Decision dateJun 17, 2019

Cite For

Financial Considerations Under Guideline F
Impact of Delinquent Debts on Security Clearance Eligibility
Responsibility in Managing Financial Obligations

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 raised issues regarding the Judge's findings of fact and the decision's legality. The Board affirmed the denial, finding no harmful errors in the Judge's decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPaul J. Mason — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contends the Judge erred in various findings of fact.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argues that the Judge's decision was arbitrary, capricious, or contrary to law.

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 supported by substantial evidence and that any errors identified by the Applicant were harmless. The 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: Although Applicant has pointed out some errors, none of them merit any corrective action. Even when considered collectively, the errors are harmless. Adverse decision affirmed. CASENO: 18-00754.a1 DATE: 06/17/2019 DATE: June 17, 2019 ) In Re: ) ) -------------------------- ) ISCR Case No. 18-00754 ) ) Applicant for Security Clearance ) )

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 23, 2018, 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 April 11, 2019, after the hearing, 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 issues on appeal: (1) whether the Judge erred in his findings of fact and (2) whether the Judge’s decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact and Analysis Applicant is married with two children. He pays child support for one of them. He served honorably in the military and has held a security clearance since 1996. The SOR alleged 20 delinquent debts, including judgments, that total about $104,000. In his response to the SOR, Applicant denied five of the debts because he was not familiar with them and admitted the others. The debts became delinquent between 2011 and 2017, and the judgments were filed between 2012 and 2014. In 2013, Applicant experienced a reduction in his annual earning from $114,000 to $90,000 when his employer, a defense contractor, changed. In February 2014, he was laid off from his job, began working in a temporary position in July, and was hired for his present position in August of that year. His current annual earnings are $105,000. He attributed his financial problems to his pay reduction in 2013 and his unemployment in 2014. Applicant paid one alleged debt through a garnishment in 2016 and 2017. In 2018, he filed Chapter 13 bankruptcy to prevent his home from being foreclosed. He has made three payments totaling about $2,100 under the bankruptcy. His bankruptcy payments will increase over time to more than $2,000 a month, which he currently cannot afford. He anticipates that he will be able to afford the payments once he successfully negotiates a home loan modification and renegotiates a new Chapter 13 plan. He believes all of the SOR debts are listed in his bankruptcy; however, one is not listed. Applicant’s debts are numerous and ongoing. Due to a lack of evidence showing actions to address the debts before his bankruptcy, his debts continue to cast doubt on his current reliability, trustworthiness, and good judgment. He encountered unforeseen events that negatively impacted his financial situation, but failed to establish that he acted responsibly under the circumstances. Despite filing bankruptcy, he has not shown his financial problems are under control. In the whole- person analysis, the Judge noted that “[h]aving been fully employed for more than four years, it is reasonable to expect that Applicant would have taken more responsible and timely action to address the listed debts.” Decision at 7. The Judge found against Applicant on all of the alleged debts.

DISCUSSION

Applicant contends the Judge erred in various findings of facts. Whenever a Judge’s findings of fact are challenged, we examine them to see if they are supported by substantial evidence, i.e., “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” Directive ¶ E3.1.32.1. See, e.g., ISCR Case No. 16-04094 at 2 (App. Bd. Apr. 20, 2018). In this case, Applicant, for example, points out that the Judge stated in the synopsis of the decision that he was laid off for three months in 2014 when he was actually laid off for six and a half months. In the findings of fact, however, the Judge accurately listed the time period that Applicant was unemployed as reflected in his security clearance application (Government Exhibit (GE) 1) and his testimony (Tr. at 8, 30-31, and 34-35). Applicant also challenges the Judge’s finding that one of the SOR debts was not listed in his bankruptcy. Applicant is correct that the debt in question was listed in Schedule G - Executory Contracts and Unexpired Leases of the bankruptcy petition. Applicant further notes that he has a daughter and son as opposed to the Judge’s finding that he has two daughters. Although Applicant has pointed out some errors, none of them merit any corrective action. Even when considered collectively, the errors are harmless. See, e.g., ISCR Case No 11-15184 at 3 (App. Bd. Jul. 25, 2013)(An error is harmless if it did not likely affect the outcome of the case). Applicant also requests that, if we decide to affirm the Judge’s unfavorable clearance decision, we grant him a favorable public trust determination. We have no authority to grant that request. The Appeal Board neither has fact-finding authority nor authority to change the nature of the adjudication below. See, e.g., ISCR Case No. 14-02394 at 3 (App. Bd. Aug. 17, 2015). We also note that the adjudicative guidelines applied in this case are used whether a case is a security clearance adjudication or public trust adjudication (i.e., a “sensitive position” adjudication). See Directive, Encl. 2 ¶¶ B, C, D.8, and E; and Encl. 2, App. A ¶ 1. Additionally, Applicant requests that we waive the one-year bar for reapplying for a public trust position following an adverse decision. See Directive ¶ E3.1.37. We have no authority to waive the one-year reapplication bar. See, e.g., ISCR Case No. 08-08606 at 2 (App. Bd. Dec. 4, 2009). The balance of Applicant’s arguments amounts to a disagreement with the Judge’s weighing of the evidence. These arguments, however, are not sufficient to demonstrate the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15- 00650 at 2 (App. Bd. Jun. 27, 2016).

Applicant has not established that the Judge committed any harmful error. 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: 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