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ISCR Case 07-03232.a1 — CASE

ISCR Case 07-03232.a1denied

Case Headnote

ISCR Case No. 07-03232.a1

Mar 24, 2008· Hon. Jean E. Smallin· appeal

Summary

The applicant was denied a security clearance under Guideline F, Financial Considerations, due to a significant and lengthy history of unmet financial obligations. Disqualifying conditions were raised under Adjudicative Guideline (AG) paragraph 19.

At the time of the hearing, the applicant still had substantial delinquent debts and was actively working to resolve her financial problems. She presented mitigating evidence under AG paragraph 20, which included details about her circumstances and military service.

However, the judge determined that the mitigating evidence was insufficient to overcome the government's security concerns regarding her ongoing financial issues. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20rejectedFinancial ConsiderationsThe judge considered the applicant's mitigating evidence but found it insufficient to overcome the disqualifying conduct.

Key Rule Quoted

“A whole-person analysis is not confined to the workplace.”
— ISCR Case No. 03-11231 at 3 (App. Bd. Jun. 4, 2004)

Procedural Posture

SOR issuedJul 26, 2007
Answer filed—
Hearing heldDec 3, 2007
Decision dateMar 24, 2008

Cite For

Insufficient Mitigating Evidence Under Guideline F
Whole-person Analysis in Security Clearance Cases
Ongoing Financial Issues as a Basis for Denial of Clearance

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 her mitigating evidence. The Board affirmed the Judge's decision, finding no harmful error in the weighing of evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJohn Grattan Metz, Jr. — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge did not give sufficient weight to her mitigating evidence.

Why the Board ruled this way

The Board found that the Judge's decision was sustainable based on the evidence of Applicant's ongoing financial issues and the proper application of mitigating factors.

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

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

KEYWORD: Guideline F DIGEST: A whole-person analysis is not confined to the workplace. The Judge found Applicant has a lengthy and serious history of not meeting financial obligations. Adverse decision affirmed. CASENO: 07-03232.a1 DATE: 03/24/2008 DATE: March 24, 2008 In Re: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-03232

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 July 26, 2007, DOHA issued a statement of reasons (SOR) 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 hearing. On December 3, 2007, after the hearing, Administrative Judge John Grattan Metz, Jr., 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 erred by concluding that the security concerns raised under Guideline F had not been mitigated. Applicant argues that the Judge’s adverse decision should be reversed because the Judge did not give sufficient weight to Applicant’s mitigating evidence which showed that: (a) Applicant’s indebtedness had resulted from circumstances beyond her control, a divorce; (b) she had paid off, been making payments on, or been otherwise disputing her outstanding debts; and (c) her military service record had been excellent, and she had never been reprimanded for wrongdoing. Applicant’s arguments do not demonstrate that the Judge erred. An applicant with good or exemplary job performance may engage in conduct that has negative security implications. See, e.g., ISCR Case No. 99-0123 at 3 (App. Bd. Jan. 11, 2000). The Directive's Guidelines set forth a variety of examples of off-duty conduct and circumstances which are of security concern to the government and mandate a whole-person analysis to determine an applicant's security eligibility. A whole-person analysis is not confined to the workplace. See ISCR Case No. 03-11231 at 3 (App. Bd. Jun. 4, 2004). Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. The application of disqualifying and mitigating conditions and whole-person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. See, e.g., 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. 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. 06-11172 at 2 (App. Bd. Sep. 4, 2007). In this case, the Judge found that Applicant had a lengthy and serious history of not meeting financial obligations. At the time of the hearing, Applicant still had significant delinquent debts and was still in the process of resolving her financial problems. 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). Furthermore, the Judge’s challenged findings are sustainable. The Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct and considered the possible application of relevant mitigating conditions and whole-person factors. The Judge considered the evidence which Applicant referenced in her appeal brief and reasonably explained why that evidence was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. 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. 06-11172 at 2 (App. Bd. Sep. 4, 2007). Given the record that was before him, the Judge’s ultimate unfavorable security clearance decision under Guideline F is sustainable.

ORDER

The decision of the Judge denying Applicant a security 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