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ISCR Case 06-18694.a1 — CASE

ISCR Case 06-18694.a1denied

Case Headnote

ISCR Case No. 06-18694.a1

Feb 21, 2008· Hon. Jean E. Smallin· appeal

Summary

An applicant, representing herself, was denied a security clearance under Guideline F (Financial Considerations). The appeal centered on claims that the judge did not adequately consider mitigating evidence regarding her financial situation and efforts to repay debts. The Board affirmed the denial, concluding that the judge's decision was based on the complete record and that the applicant had opportunities to present additional evidence but failed to do so.

Disqualifying conditions were raised under AG ¶ 20, while mitigating conditions were applied under AG ¶ 21. The denial was primarily due to the applicant's failure to respond to the File of Relevant Material (FORM) after receiving it, thereby missing the opportunity to submit additional evidence. Consequently, the judge's decision was based entirely on the FORM, which did not include the applicant's claims of mitigating evidence.

The Board emphasized that the presence of some mitigating evidence does not compel a favorable decision, as the judge is required to weigh all available evidence.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe judge found the applicant's evidence of mitigation insufficient to overcome the government's security concerns.

Key Rule Quoted

“The application of disqualifying or mitigating conditions does not turn simply on a finding that one or more of them apply to the particular facts of a case.”
— ISCR Case No. 06-12032 at 2 (App. Bd. Oct. 30, 2007)

Procedural Posture

SOR issuedDec 14, 2006
Answer filed—
Hearing held—
Decision dateFeb 21, 2008

Cite For

Insufficient Evidence of Mitigation Under Guideline F
Importance of Responding to the FORM
Discretion in Weighing Evidence for Security Clearance Decisions

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 a denial of a security clearance based on financial considerations under Guideline F. The applicant argued that the Judge did not adequately consider mitigating evidence regarding her financial situation. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowNoreen A. Lynch — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge did not consider information which Applicant submitted to the investigator.

Why the Board ruled this way

The Board found that the Judge's decision was based on substantial evidence and that the applicant did not demonstrate harmful error. The Judge properly considered the evidence presented and exercised discretion in weighing the mitigating factors against the security concerns.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael D. Hipple
Jean E. Smallin
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 DIGEST: Applicant contends that the Judge did not consider information which Applicant submitted to the investigator in her case. The Judge’s decision was based entirely on the File of Relevant Material (FORM). Applicant received a copy of the FORM and had the opportunity to submit materials to refute, extenuate, or mitigate the information in the FORM. Applicant could have resubmitted any materials she gave to the investigator which were not in the FORM when she received it. Applicant did not respond to the FORM. Applicant has not demonstrated error on this issue. Adverse decision affirmed. CASENO: 06-18694.a1 DATE: 02/21/2008 DATE: February 21, 2008 In Re: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-18694

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 December 14, 2006, DOHA issued a statement of reasons 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 decision on the written record. On October 18, 2007, after reviewing the record, Administrative Judge Noreen A. Lynch 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 is arbitrary, capricious, or contrary to law. In her appeal, Applicant contends that the Judge should have given more consideration to the mitigating evidence Applicant supplied as to her personal circumstances and her efforts to repay her debts. Applicant maintains that she submitted paperwork to an investigator in February 2006 which was not included in the file of relevant material (FORM). In her appeal brief, Applicant restates her personal circumstances at the time her financial problems arose, but adds some personal information which was not part of the FORM, including more recent efforts to pay off her debts. The Board is unable to consider the additional personal and financial information that was not part of the FORM, because the Board cannot consider new evidence. See Directive ¶ E3.1.29. Applicant contends that the Judge did not consider information regarding payment plans between Applicant and her creditors, which Applicant submitted to the investigator in February 2006. The Judge’s decision was based entirely on the FORM. In August 2007, Applicant received a copy of the FORM and had the opportunity to submit materials to further refute, extenuate, or mitigate the information in the FORM. At that time, Applicant could have resubmitted any materials she gave to the investigator which were not in the FORM when she received it. Applicant did not respond to the FORM. Applicant has not demonstrated error on this issue. Applicant argues that the Judge should have concluded that her financial situation was mitigated. However, the application of disqualifying or mitigating conditions does not turn simply on a finding that one or more of them apply to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole. See, e.g., ISCR Case No. 06-12032 at 2 (App. Bd. Oct. 30, 2007). Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. See, e.g., ISCR Case No. 05-02833 at 2 (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, e.g., ISCR Case No. 05-03143 at 3 (App. Bd. Dec. 20, 2006). In her decision, the Judge refers to Applicant’s personal circumstances and to the comments Applicant made about her financial situation in response to DOHA Interrogatories in October 2006. The Judge explained why Applicant’s evidence of mitigation was not sufficient to overcome the government’s security concerns. The Judge’s decision is sustainable.

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board