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ISCR 06-20964.a2: Guideline E security clearance appeal, denied (2008) · CASE

ISCR Case 06-20964.a2denied

Case headnote

ISCR Case No. 06-20964.a2

Nov 12, 2008· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline E (Personal Conduct) and Guideline F (Financial Considerations) due to significant and ongoing financial issues. These issues included a history of delinquent debt and substantial federal income tax arrearages.

The Administrative Judge found that the applicant's debt payments consumed approximately half of his income, indicating considerable financial strain. Furthermore, despite being current on accounts at the close of the record, the applicant's overall debt load continued to increase.

The Administrative Judge concluded that the applicant's financial problems were ongoing, leading to the denial of the security clearance. This decision was subsequently affirmed by the Appeal Board.

Conditions referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

Key rule quoted

“The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision.”
ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007)

Procedural posture

SOR issuedMay 2, 2007
Answer filed—
Hearing heldOct 31, 2007
Decision dateNov 12, 2008Decision affirmed by Appeal Board.

Cite for

Ongoing Financial Issues Under Guideline F
Impact of Excessive Debt on Security Clearance
Weight of Mitigating Evidence in 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 the applicant's history of delinquent debt, including substantial federal income tax arrearages. The Department Counsel appealed the Administrative Judge's decision to grant the clearance, but the Appeal Board affirmed the Judge's unfavorable decision, finding no harmful error in the Judge's conclusions regarding the applicant's financial situation.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowMark W. Harvey denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the Government (Department Counsel)Rejected
The Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's conclusions regarding the applicant's ongoing financial problems were supported by substantial evidence and that the Judge properly weighed the evidence presented.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decision

Appeal Board panel

Michael Y. Ra’anan (Chair)
Jeffrey D. Billett
Jean E. Smallin

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: Applicant’s history of delinquent debt includes substantial arrearages in his federal income tax. Judge reasonably concluded that Applicant’s debt problems were ongoing. Adverse decision affirmed. CASENO: 06-20964.a2 DATE: 11/12/2008 DATE: November 12, 2008 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-20964

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 May 2, 2007, 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 October 31, 2007, after the hearing, the Administrative Judge granted Applicant’s request for a security clearance. Department Counsel appealed, and in a decision dated April 10, 2008, the Appeal Board remanded the case for a new decision. Because the original Judge was no longer employed by DOHA, the case was remanded to a new Judge. After a subsequent hearing, Administrative Judge Mark W. Harvey 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. For the following reasons, the Board affirms the Judge’s unfavorable decision. Applicant essentially contends that the Judge’s adverse decision should be reversed because the Judge did not give adequate weight to mitigating evidence and other favorable evidence about his efforts to rectify his ongoing financial problems. In support of his request, Applicant summarizes the favorable evidence he presented below. Applicant’s argument does not demonstrate that the Judge’s ultimate conclusions are in error. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. 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. See, e.g., ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007). 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. 06-17409 at 3 (App. Bd. Oct. 12, 2007).

In this case, the Judge found that Applicant has a history of debt delinquencies, including substantial federal income tax arrearages. The Judge also found that debt payments consume approximately half of Applicant’s income, that Applicant and his wife spend consistently beyond their means, that their indebtedness is excessive, and that Applicant’s negative cash flow is significant. While Applicant was current on all of his accounts at the close of the record, the Judge noted that his debt load continued to increase. In light of the foregoing, the Judge could reasonably conclude that Applicant’s financial problems were still ongoing. See, e.g., ISCR Case No. 05-07747 at 2 (App. Bd. Jul.3, 2007). The Board does not review a case de novo. After reviewing the record, the Board concludes that the Judge’s ultimate unfavorable security clearance decision is sustainable.

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: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board