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ISCR Case 07-08398.a1 — CASE

ISCR Case 07-08398.a1denied

Case Headnote

ISCR Case No. 07-08398.a1

Jun 19, 2008· Hon. Jean E. Smallin· appeal

Summary

An applicant representing himself was denied a U.S. security clearance under Guideline F, Financial Considerations. The denial stemmed from 18 delinquent debts, totaling approximately $33,509, which were identified as disqualifying conditions.

Despite the applicant's claims of mitigating circumstances, including efforts to address the financial issues, the judge found these insufficient to resolve the security concerns. Specifically, none of the 18 debts had been paid, and the applicant's financial problems were ongoing at the time of the hearing, as the debts had not been discharged.

Consequently, the judge determined that the applicant's financial situation presented an unacceptable security risk, leading to the denial of the security clearance application.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20(a)rejectedThe Behavior Was Not RecentThe judge found the financial issues ongoing.
AG ¶ 20(b)appliedThe Individual Has Received CounselingThe applicant completed mandatory credit counseling in November 2007.
AG ¶ 20(c)rejectedThe Individual Has Made Good Faith Efforts to Repay DebtsThe judge concluded that the evidence was insufficient to overcome security concerns.

Key Rule Quoted

“Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.”

Procedural Posture

SOR issuedNov 21, 2007
Answer filed—
Hearing heldMar 12, 2008
Decision dateJun 19, 2008

Cite For

Ongoing Financial Issues Under Guideline F
Burden of Proof on Applicant to Establish Mitigation
Insufficient Evidence to Overcome Security Concerns Despite Some Mitigating Factors

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 was regarding the denial of a security clearance based on financial considerations under Guideline F. The Applicant argued that the Judge did not adequately weigh mitigating evidence related to his financial issues. The Board affirmed the Judge's decision, finding no harmful error in the assessment of the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's failure to mitigate the Guideline F security concerns was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision, affirming that the Judge reasonably concluded that Applicant's financial problems were ongoing and that the mitigating evidence presented was insufficient to overcome the government's security concerns.

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: The Judge found that Applicant had 18 delinquent debts. At the time of the hearing the debts had not been discharged. The Judge could reasonably conclude Applicant’s financial probl;ems were ongoing. Adverse decision affirmed. CASENO: 07-08398.a1 DATE: 06/19/2008 DATE: June 19, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-08398

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 November 21, 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 March 12, 2008, 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 failure to mitigate the Guideline F security concerns is arbitrary, capricious, or contrary to law. Finding no error, we affirm. 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 he contends showed that the outstanding debts were old, that he had taken reasonable steps to resolve his financial problems, and that he has outstanding character references. Applicant’s arguments do not demonstrate that the Judge erred. Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. 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 had 18 delinquent debts totaling approximately $33,509, none of which had been paid. He had completed mandatory credit counseling in November 2007, in anticipation of a bankruptcy, and had filed for Chapter 7 bankruptcy later that same month. Applicant’s bankruptcy petition reflected three repossessed cars, although Applicant testified that he believed there had actually been four voluntarily repossessed cars. At the time of the hearing, Applicant’s debts had not yet been discharged. Decision at 3. In light of the foregoing, the Judge could reasonably conclude that Applicant’s financial problems were still ongoing. See, e.g., ISCR Case No. 06-23894 at 2 (App. Bd. Mar. 6, 2008). 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. He gave Applicant partial credit under the relevant mitigating conditions. However, he reasonably explained why the evidence which Applicant had presented in mitigation 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