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ISCR 20-03553: Guideline F security clearance appeal, denied (2022) · CASE

ISCR Case 20-03553denied

Case headnote

ISCR Case No. 20-03553

Oct 13, 2022· Hon. Moira D. Modzelewski· appeal

Summary

A man in his fifties was denied a security clearance under Guideline F (Financial Considerations) due to a history of significant financial instability. This included two Chapter 7 bankruptcies and eight delinquent debts totaling approximately $96,000. The appeal board upheld the denial, citing a prolonged pattern of financial problems and a lack of sustained financial stability.

While the applicant did make efforts to resolve some debts, these actions were largely initiated after receiving the Statement of Reasons (SOR) regarding his clearance. The board determined that this timing reduced the mitigating value of his efforts, as they appeared primarily motivated by the jeopardy to his security clearance rather than a consistent demonstration of responsible financial behavior.

Ultimately, the applicant failed to show a good-faith effort to address his debts prior to the SOR. The board applied Disqualifying Condition F.3 and considered Mitigating Conditions F.2 and F.3, but found them insufficient to overcome the long-standing financial concerns.

Conditions referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts

Mitigating

F.2rejectedThe Conditions That Resulted in the Financial Difficulties Were Largely Beyond the Person's ControlThe applicant's financial issues were longstanding and not adequately addressed.
F.3rejectedThe Person Has Made a Good Faith Effort to Repay Overdue Creditors or Otherwise Resolve DebtsThe applicant's post-SOR efforts were deemed to have little mitigative value.

Key rule quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with national security.’”
Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural posture

SOR issuedJan 22, 2021
Answer filed—
Hearing heldJul 26, 2022after the record closed
Decision dateOct 13, 2022Appeal decision affirmed

Cite for

Affirmation of Denial Based on Financial Considerations Under Guideline F
Evaluation of Applicant's Financial Responsibility and Stability
Impact of Timing on Mitigation Efforts in Financial 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 concerned the denial of a security clearance based on financial considerations, specifically eight delinquent debts. The applicant argued that the Judge failed to consider all evidence and misapplied mitigating factors. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationAttorney

Judge belowBenjamin R. Dorsey denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
The Judge failed to properly consider all available evidence, rendering his adverse decision arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision, which was well-supported by the evidence and consistent with legal standards.

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

James F. Duffy (Chair)
James E. Moody
Moira Modzelewski

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

APPEARANCES

_______________________________________________ ) In the matter of: )

)

----- )

ISCR Case No. 20-03553

)

) Applicant for Security Clearance ) _______________________________________) DEPARTMENT OF DEFENSE DEFENSE LEGAL SERVICES AGENCY DEFENSE OFFICE OF HEARINGS AND APPEALS APPEAL BOARD POST OFFICE BOX 3656 ARLINGTON, VIRGINIA 22203 (703) 696-4759 Date: October 13, 2022

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Brittany D. Forrester, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On January 22, 2021, DoD issued a statement of reasons (SOR) advising Applicant of the basis of that decision—security concerns raised under Guideline F (Financial Considerations) of DoD Directive 5220.6 (January 2, 1992, as amended) (Directive). Applicant requested a hearing. On July 26, 2022, after the record closed, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Benjamin R. Dorsey denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The SOR alleged ten financial concerns—Chapter 7 bankruptcies in 1998 and 2010 and eight delinquent debts. The Judge found for Applicant on the two bankruptcies and against Applicant on the eight delinquent debts. The favorable findings are not in issue. Applicant raises the following issue on appeal—whether the Judge failed to properly consider all available evidence, rendering his adverse decision arbitrary, capricious, or contrary to law. Consistent with the following, we affirm.

The Judge’s Findings of Fact and Analysis Applicant is in his fifties, has worked in his current position since January 2008, and earned an associate’s degree in 2010. Applicant’s eight delinquent debts total approximately $96,000. Two are student loans that total about $90,000, and the other six are delinquent medical debts. The student loans first became due sometime in 2010, but Applicant applied for forbearance or deferrals for several years. At most, Applicant made one or two payments on the loans. In December 2021, he entered into a student loan rehabilitation agreement, prompted—he admitted—by receipt of the SOR. As of the hearing, Applicant had not yet started payments under his rehabilitation agreement. The Judge took administrative notice that all federal student loans were deferred as of late March 2020, but also noted that Applicant was delinquent on the debts prior to their placement in a deferment status. In April 2021, Applicant borrowed money from a family member and settled the six delinquent medical debts. He then borrowed money from his retirement savings to pay back his family member. Applicant admitted that receipt of the SOR motivated him to settle and pay the medical debts, which arose in 2018. Applicant has “twice afforded himself fresh starts through Chapter 7 bankruptcies, thereby discharging hundreds of thousands of dollars of debt,” but once again has financial problems. Decision at 6. His student loan debt has been due for over a decade and has been in collection for several years. Additionally, he had delinquent medical debt that went unresolved for many years. He has now resolved his medical debts and entered into a rehabilitation plan for his student loans. However, the timing of his efforts—only after he received notice that his clearance was in jeopardy — reduces their value in mitigation. I am unable to find that Applicant acted responsibly under the circumstances or that he made a good-faith effort to pay his student loans and medical debts. . . . His prolonged history of financial problems with little to no track record of financial stability fails to show that his financial issues are unlikely to recur. [Id. at 7.]

DISCUSSION

Applicant has not challenged any of the Judge’s specific findings of fact. Rather, he contends the Judge erred in failing to comply with the provisions in Executive Order 10865 and the Directive by not considering all of the evidence, by mis-weighing the evidence, and by not properly applying the mitigating conditions and whole-person concept. For example, Applicant argues that the Judge “refused to find in favor of Applicant regarding [the medical debts] solely due to the timing of Appellant’s efforts to rectify these debts.” Appeal Brief at 6. However, the Judge’s determination that Applicant’s post-SOR efforts were of “little mitigative value” is well- rooted in the Appeal Board precedent to which he cites. Decision at 7. None of Applicant’s arguments are enough to rebut the presumption that the Judge considered all of the record evidence or to demonstrate the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 19-01400 at 2 (App. Bd. Jun. 3, 2020).

Although we give due consideration to the Hearing Office cases that Applicant’s counsel has cited, they are neither binding precedent on the Appeal Board nor sufficient to undermine the Judge’s decision. See, e.g., ISCR Case No. 17-02488 at 4 (App. Bd. Aug. 30, 2018). Applicant failed to establish that the Judge committed any harmful error or that he should be granted any relief on appeal. 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 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 national security.”

ORDER

The decision is AFFIRMED. Signed: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board