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ISCR 04-09750: Guideline E security clearance appeal, denied (2007) · CASE

ISCR Case 04-09750denied

Case headnote

ISCR Case No. 04-09750

Aug 2, 2007· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing himself, was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline F (Financial Considerations), and Guideline J (Criminal Conduct). The denial was primarily based on a history of delinquent indebtedness spanning at least ten years.

The applicant owes approximately $252,675.00 to 39 different creditors. While the applicant presented claims of mitigating circumstances, these were deemed insufficient. Specifically, recent property sales did not demonstrate a good-faith effort to repay the outstanding debts.

The Adjudicative Guidelines' disqualifying conditions AG ¶ 20, AG ¶ 15, and AG ¶ 30 were raised, and while mitigating conditions AG ¶ 20(d), AG ¶ 15, and AG ¶ 30 were considered, they did not overcome the substantial security concerns posed by the applicant's financial history. Consequently, the security clearance was denied.

Conditions referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct
AG ¶ 30raisedCriminal Conduct

Mitigating

AG ¶ 20(d)rejectedFinancial ConsiderationsThe applicant's recent property sales were insufficient to mitigate the financial concerns.
AG ¶ 15notedPersonal Conduct
AG ¶ 30notedCriminal Conduct

Key rule quoted

“The record supports the Judge’s unfavorable conclusions under Guideline F.”

Procedural posture

SOR issuedSep 14, 2005
Answer filed—
Hearing heldJan 23, 2007
Decision dateAug 2, 2007

Cite for

Insufficient Mitigation of Financial Issues Under Guideline F
Long-standing Delinquent Indebtedness as a Security Concern
Lack of Good-faith Repayment Efforts in Financial Matters

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 an applicant seeking a security clearance after being denied due to concerns under multiple guidelines, including financial considerations and personal conduct. The applicant argued that the Judge's decision was arbitrary and capricious, particularly regarding his plans to address debts. The Board affirmed the Judge's decision, finding no harmful error in the ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowWilford H. Ross denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline EGuideline GGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant claimed the Judge's decision was 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 supported by substantial evidence and not arbitrary or capricious. The Judge's findings under Guideline F were upheld, and the adverse findings under Guidelines E and J were not challenged on appeal.

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 Y. Ra’anan (Chair)
Jeffrey D. Billett
William S. Fields

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; Guideline G; DATE: August 2, 2007 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 04-09750

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On September 14, 2005, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations), Guideline E (Personal Conduct), Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended)(Directive). Applicant requested a hearing. On January 23, 2007, after the hearing, Administrative Judge Wilford H. Ross denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision was arbitrary, capricious, or contrary to law. Because Applicant fails to establish error on the part of the Judge, the Board affirms the Judge’s decision. On appeal, Applicant cites as specific error the Judge’s finding that Applicant has no current plans to pay a $25,000.00 debt to his ex-wife. Applicant asserts that the record evidence shows that a sale of real property currently in progress indicates his intent to address the debt. Applicant then asserts more generally that his plan to pay off or reduce his debts by selling off parcels of real property are legitimate repayment plans and are therefore mitigating. Applicant specifically references one debt in the amount of $177,201.11 (his largest debt) and states that the debt is largely accrued interest and can therefore be reduced through negotiations to a much smaller amount. Applicant also indicates that his obligation on this particular debt is moral rather than legal since the statute of limitations has past. In this case, the Judge made sustainable findings that Applicant has a history of delinquent indebtedness of which he has been aware for at least ten years, he owes 39 different creditors approximately $252,675.00, and he has real property assets of a value that exceeds the amount of his indebtedness, but which, until very recently, Applicant did not want to sell. The Judge concluded that Applicant’s attitude, historically, appeared to be that as long as his assets were more than his indebtedness, he was “all right.” This conclusion is reasonably supported by the record evidence. In terms of mitigation, the Judge acknowledged that Applicant recently sold two pieces of property for a total of $10,000.00, which he applied to an outstanding judgment of approximately $20,000.00. The Judge also noted that Applicant is in the process of selling a third piece of real property for approximately $40,000.00, which will enable him to pay off the rest of the judgment and to eliminate all but his two largest debts. Nevertheless, the Judge concluded that Applicant’s debts and history of past due indebtedness had not been mitigated. The Judge stated that there was little likelihood that Applicant’s creditors would get paid in the foreseeable future, and Applicant’s recent sale of two properties and the expected sale of a third did not rise to the level of a good-faith attempt to repay creditors or otherwise resolve the debts. The Judge reasonably explained why the evidence which Applicant had presented in mitigation was insufficient to overcome the government’s security concerns. The favorable record evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 02-28041 at 4 (App. Bd. Jun. 29, 2005). The record supports the Judge’s ultimate unfavorable clearance decision under Guideline F. Moreover, the Judge also made formal findings adverse to Applicant under Guidelines E and J of the Directive, and these formal findings provide additional bases for the Judge’s overall unfavorable security clearance decision. On appeal, Applicant does not challenge the Judge’s adverse findings and conclusions under Guidelines E and J.

ORDER

The decision of the Judge denying Applicant a security clearance 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: William S. Fields William S. Fields Administrative Judge Member, Appeal BoardGuideline J DIGEST: On appeal, Applicant does not challenge the Judge’s adverse findings and conclusions under Guidelines E and J. The record supports the Judge’s unfavorable conclusions under Guideline F. Adverse decision affirmed. CASENO: 04-09750.a1 DATE: 08/02/2007