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ISCR Case 05-11134.a1 — CASE

ISCR Case 05-11134.a1denied

Case Headnote

ISCR Case No. 05-11134.a1

Nov 16, 2007· Hon. Jean E. Smallin· appeal

Summary

An applicant, represented by counsel, was denied a security clearance under Guideline F (Financial Considerations) due to unmitigated financial issues. The Appeal Board affirmed this denial, citing the presumption against granting security clearances and the applicant's failure to adequately address the financial concerns.

Disqualifying conditions were raised under AG ¶ 19, while mitigating conditions were considered under AG ¶ 20. However, the applicant's financial problems were deemed serious and recent, undermining claims of mitigation. The applicant did not provide sufficient evidence to demonstrate that these financial issues were under control.

Ultimately, the denial was upheld because the applicant failed to meet the high burden of proof required to overcome the presumption against granting a security clearance, particularly given the nature and recency of the financial concerns.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20rejectedFinancial ConsiderationsThe applicant's evidence of counseling and good faith efforts were insufficient to mitigate the financial concerns.

Key Rule Quoted

“[T]here is a strong presumption against granting a security clearance.”
— Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)

Procedural Posture

SOR issuedApr 4, 2006
Answer filed—
Hearing heldJun 13, 2007
Decision dateNov 16, 2007

Cite For

Presumption Against Granting Security Clearances Under Guideline F
Insufficient Mitigation of Financial Issues
Burden of Proof on Applicant to Demonstrate Mitigation of Security Concerns

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 who was denied based on financial considerations under Guideline F. The applicant argued that the Judge's decision was arbitrary and capricious, citing evidence of mitigation. The Board affirmed the Judge's decision, finding no harmful error in the ruling.

Appealed bythe applicant

Applicant representationAttorney

Judge belowEdward W. Loughran — denied the clearance (split findings)

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 adverse security clearance decision under Guideline F was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge reasonably weighed the evidence and explained why the mitigating evidence was insufficient to overcome the government's security concerns. The Board affirmed the Judge's decision as not arbitrary, capricious, or contrary to law.

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

Jean E. Smallin
William S. Fields
James E. Moody

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

FOR OFFICIAL USE ONLY When unredacted this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies KEYWORD: Guideline F; Guideline DIGEST: Hearing Office decisions are binding neither on other Hearing Office Judges nor on the Appeal Board. Adverse decision affirmed. CASENO: 05-11134.a1 DATE: 11/16/2007 DATE: November 16, 2007 In Re: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 05-11134

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Alan V. Edmunds, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On April 4, 2006, DOHA issued a statement of reasons advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) and The Judge found in favor of Applicant under Guideline E and with respect to SOR paragraphs 1.bthrough 1.j, and 1.land 1.m. Those favorable findings are not at issue on appeal. Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On June 13, 2007, after the hearing, Administrative Judge Edward W. Loughran denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse security clearance decision under Guideline F is arbitrary, capricious, or contrary to law.1 Applicant argues that the Judge should have concluded that the security concerns raised under Guideline F had been mitigated, as a matter of law, because Applicant has received counseling for his financial problems, he initiated a good faith effort to resolve those problems, and there are clear indications that his problems are under control. In support of his argument, he cites to several DOHA Hearing Office decisions in which applicants in ostensibly similar circumstances were granted clearances. Given the totality of the record evidence, Applicant’s arguments do not demonstrate that the Judge’s decision is arbitrary, capricious, or contrary to law. The Board gives due consideration to the Hearing Office cases which Applicant has submitted in his appeal brief. However, such decisions are binding neither on Hearing Office Judges nor on the Board. See ISCR Case No. 05-14853 at 3 (App. Bd. Sep. 24, 2007). “[T]here is a strong presumption against granting a security clearance.” Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). Once the government th presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The application of disqualifying and mitigating conditions requires the exercise of sound discretion in light of the record evidence as a whole. See ISCR Case No. 01-14740 at 7 (App. Bd. Jan. 15, 2003). “Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision.” See ISCR Case No. 05-02833 (App. Bd. Mar. 19, 2007). “As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. An applicant’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 ISCR Case No. 05-03143 at 3 (App. Bd. Dec. 20, 2006). A review of the decision indicates that the Judge weighed the mitigating evidence offered by Applicant against the record evidence relating to the length, seriousness and recency of the disqualifying conduct, and considered the possible application of relevant mitigating conditions and whole-person factors. The Judge found in favor of the Applicant with respect to most of the factual allegations. However, the Judge reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome all the government’s security concerns. The Board does not review a case de novo. Given the record that was before him, the Judge’s ultimate unfavorable clearance decision under Guideline F is not arbitrary, capricious or contrary to law. See, e.g., ISCR Case No. 05-06913 at 2-4 (App. Bd. Sep. 18, 2007).

ORDER

The decision of the Judge denying Applicant a clearance is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board