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ISCR 03-21497.a1: Guideline E security clearance appeal, denied (2009) · CASE

ISCR Case 03-21497.a1denied

Case headnote

ISCR Case No. 03-21497.a1

Jul 30, 2009· Hon. Jeffrey D. Billett· appeal

Summary

This security clearance application was denied under Guidelines E (Personal Conduct) and F (Financial Considerations). The applicant, representing himself, faced disqualifying conditions related to both personal conduct and financial issues.

The judge determined that the applicant's claims of not overspending were not supported by evidence. Instead, the findings indicated that the applicant and his wife engaged in overspending while experiencing financial difficulties. Furthermore, the applicant's efforts to resolve his debts were deemed insufficient and not made in good faith.

Ultimately, the security clearance was denied due to ongoing financial difficulties and a lack of substantial rehabilitation efforts demonstrated by the applicant.

Conditions referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

Key rule quoted

“A party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law.”
ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007)

Procedural posture

SOR issuedNov 6, 2008
Answer filed—
Hearing heldMay 27, 2009
Decision dateJul 30, 2009

Cite for

Insufficient Evidence of Financial Rehabilitation Under Guideline F
Disagreement with Evidence Weighing Does Not Demonstrate Error
Affirmation of Adverse Decisions Based on Supported Findings

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. The Board affirmed the Judge's decision, finding that the Judge's findings were supported by the record evidence and that the applicant's assertions did not demonstrate error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDarlene D. Lokey Anderson denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argued that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the Judge did not commit harmful error in her decision.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan (Chair)
Jeffrey D. Billett
Michael D. Hipple

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; Guideline E DIGEST: The Judge’s challenged findings are supported by the record evidence. Adverse decision affirmed. CASENO: 03-21497.a1 DATE: 07/30/2009 DATE: July 30, 2009 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 03-21497

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se Applicant did not make an assertion of harmful error with respect to the Judge’s formal findings under SOR ¶ 2. There is no presumption of error below. The Appeal Board’s authority to review a case is limited to matters in which the appealing party has alleged the Judge committed harmful error. See Directive ¶ E3.1.32. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On November 6, 2008, DOHA 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. On May 27, 2009, after the hearing, Administrative Judge Darlene D. Lokey Anderson denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable decision. Applicant states that, contrary to the Judge’s finding that he engaged in overspending, he does not overspend. Applicant also took issue with the Judge’s statement that he only recently initiated a good faith effort to resolve his debts. Applicant asserts that he has been trying to resolve his debts in good faith for the past 20 plus years. Applicant also mentions his 35-year service to the country both in the military and civilian life, and states that he would never hurt his government in any way. Applicant’s assertions do not demonstrate error on the part of the Judge. The Judge’s finding that Applicant and his wife engaged in overspending during the period of his financial difficulties and her finding that Applicant is just beginning the process of financial rehabilitation are reasonably supported by the record evidence. A party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). A review of the record and the Judge’s decision reveals that the Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct. She considered the possible application of relevant mitigating conditions and whole-person factors. The Judge reasonably explained why the evidence which Applicant had presented in mitigation was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. After reviewing the record, the Board concludes that the Judge examined the relevant evidence and articulated a satisfactory explanation for her decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfs. Ass’n of the United States v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). Therefore, the Judge’s ultimate unfavorable security clearance decision is sustainable.1

ORDER

The decision of the Judge is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board