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ISCR 19-00325.a1: Guideline E security clearance appeal (2021) · CASE

ISCR Case 19-00325.a1unknown

Case headnote

ISCR Case No. 19-00325.a1

Jan 6, 2021· Hon. Michael Y. Ra'anan· appeal

Summary

This security clearance case involved an applicant, represented by counsel, facing concerns under Guideline F (Financial Considerations) and Guideline E (Personal Conduct). The initial decision found against the applicant regarding three alleged delinquent student loans, citing Disqualifying Condition AG ¶ F.3. However, the appeal board identified errors in the judge's findings.

Specifically, the board found inaccuracies in the assessment of the applicant's marital status and the calculation of the student loan amounts. These errors were deemed significant enough to affect the overall "whole-person" assessment, which is a critical component of security clearance determinations.

As a result, the case was remanded back for correction of these identified errors and a new decision. While Mitigating Condition AG ¶ E.2 was applied, no final outcome on the security clearance was reached due to the need for a revised assessment.

Conditions referenced

Disqualifying

AG ¶ F.3raisedFinancial Considerations

Mitigating

AG ¶ E.2appliedPersonal Conduct

Key rule quoted

“The Government must prove those controverted debts.”
Directive ¶ E3.1.14

Procedural posture

SOR issuedApr 2, 2019
Answer filed—
Hearing heldOct 16, 2020
Decision dateJan 6, 2021Decision remanded for correction of errors.

Cite for

Errors in Findings of Marital Status Affecting Whole-person Assessment
Remand Due to Miscalculation of Debts
Government's Burden to Prove Controverted Debts Under Guideline F

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

Remanded

The appeal involved a denial of a security clearance based on financial considerations and personal conduct. The applicant's counsel argued that the Administrative Judge made several errors in findings of fact, including the status of the applicant's second marriage and the computation of student loan amounts. The Board found these errors significant and remanded the case for correction and a new decision.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRoger C. Wesley denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline EGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantError sustained
The Judge erred in finding the applicant and his second wife were divorced.
Judge mis-weighed or ignored evidence, raised by the applicantError sustained
The Judge erred in computing the total amount of the alleged student loans.
Decision arbitrary, capricious, or contrary to law, raised by the applicantError sustained
The Judge's conclusion regarding the applicant's admitted debt delinquencies negated the need for independent proof.

Why the Board ruled this way

The Board found that the identified errors were not harmless and warranted a remand for correction and re-evaluation.

Ignored material evidenceNo rational connection between facts and conclusion

On remand, the judge must

The Judge should correct the identified errors, as appropriate, and issue a new decision in accordance with Directive ¶ E3.1.35.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decision

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 E; Guideline F DIGEST: Applicant’s Counsel contends that the Judge erred in some of his findings of fact. Applicant’s Counsel also contends the Judge erred in finding he and his second wife were divorced. Applicant’s security clearance application reflects that he was widowed from his second wife. He testified that his second wife was paying on the student loans until she passed away. Applicant’s Counsel argues this error had an “immense affect” in making a whole-person assessment. He also notes this was a condition beyond Applicant’s control that the Judge did not address in his decision. Applicant’s Counsel further points out that the Judge erred in computing the total amount of the alleged student loans. From our review of the record, we cannot conclude the identified errors were harmless. Decision is Remanded. CASE NO: 19-00325.a1 DATE: 01/06/2021 DATE: January 6, 2021 ) In Re: ) ) ------------------------- ) ISCR Case No. 19-00325 ) ) Applicant for Security Clearance ) )

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Frederick D. Greco, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On April 2, 2019, 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 July 10, 2019, Department Counsel amended the SOR by adding a Guideline E (Personal Conduct ) allegation. On October 16, 2020, after the hearing, Administrative Judge Roger C. Wesley denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The Judge found in favor of Applicant on the Guideline E allegation and on two of the five alleged debts. The Judge’s favorable findings were not raised as issues on appeal. The Judge found against Applicant on three alleged delinquent student loans. Applicant’s Counsel contends that the Judge erred in some of his findings of fact. In his arguments, he highlights that the Judge concluded: Applicant’s admitted debt delinquencies negate the need for any independent proof. See Directive 5220.6 at E3.1.14; McCormick on Evidence, § 262 (6th ed. 2006) His admitted debts and tax filing lapses are fully documented and create some judgment issues. See ISCR Case No. 03-01059 at 3 (App. Bd. Sept. 24, 2004). [Decision at 8.] This conclusion contains errors. In responding to the SOR, Applicant denied the student loans with explanations. His denial of the alleged student loans did not negate the need for the Government to prove those controverted debts. Directive ¶ E3.1.14. Furthermore, the SOR neither alleged that Applicant had tax filing lapses nor were any tax filing lapses raised as an issue during this proceeding. Applicant’s Counsel also contends the Judge erred in finding he and his second wife were divorced. Applicant’s security clearance application reflects that he was widowed from his second wife. Government Exhibit 1 at 13 and 24. He testified that his second wife was paying on the student loans until she passed away. Tr. at 76. Applicant’s Counsel argues this error had an “immense affect” in making a whole-person assessment. Appeal Brief at 7-8. He also notes this was a condition beyond Applicant’s control that the Judge did not address in his decision. Applicant’s Counsel further points out that the Judge erred in computing the total amount of the alleged student loans. The Judge found the student loans exceeded $127,000, when the alleged amounts totaled about $117,200. Applicant’s Counsel indicated this “appears to be a scrivener’s error.” Appeal Brief at 1. From our review of the record, we cannot conclude the identified errors were harmless. Given these circumstances, we conclude the best course of action is to remand the case. The Judge should correct the identified errors, as appropriate, and issue a new decision in accordance with Directive ¶ E3.1.35. Applicant has raised other issues that are not ripe for consideration at this time.

ORDER

The Decision is REMANDED. 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