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ISCR Case 07-09098.a1 — CASE

ISCR Case 07-09098.a1denied

Case Headnote

ISCR Case No. 07-09098.a1

Apr 16, 2009· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, representing herself, was denied under Guideline F (Financial Considerations) due to substantial delinquent debts totaling $42,482. The applicant admitted to most of the allegations regarding these debts.

While the applicant presented mitigation evidence, the judge determined it did not outweigh the government's security concerns. The appeal board upheld this denial, affirming that the judge's decision was not arbitrary.

The board also clarified that the potential impact of the denial on the applicant's employment does not affect the determination of suitability for a security clearance. The denial was based on the presence of disqualifying conditions related to financial irresponsibility, which were not sufficiently mitigated.

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedFinancial Considerations

Mitigating

AG ¶ 20(c)rejectedFinancial ConsiderationsThe judge reasonably explained why the applicant's evidence of mitigation did not overcome the government’s security concerns.
AG ¶ 20(d)rejectedFinancial ConsiderationsThe applicant's financial difficulties were attributed to her husband's job loss, but this did not mitigate the security concerns.

Key Rule Quoted

“An applicant is not made more or less suitable for a security clearance based on how the Judge’s decision might affect the applicant.”
— ISCR Case No. 03-21012 at 4 (App. Bd. Aug. 31, 2005)

Procedural Posture

SOR issuedApr 4, 2008
Answer filed—
Hearing heldJan 30, 2009
Decision dateApr 16, 2009

Cite For

Denial Based on Substantial Delinquent Debts Under Guideline F
Weight of Evidence in Mitigation Not Sufficient to Overturn a Judge's Decision
Impact of Adverse Decision on Employment Does Not Influence Suitability for 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 an applicant seeking a security clearance who was denied due to financial considerations under Guideline F. The applicant argued that the Judge did not adequately weigh her evidence of mitigation. 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 belowPaul J. Mason — 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 contends that the Judge did not give adequate weight to her evidence of mitigation.

Why the Board ruled this way

The Board found that the Judge's decision was not arbitrary, capricious, or contrary to law, and that the evidence presented by the Applicant did not outweigh the government's security concerns.

Standard of review applied

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

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 Judge’s weighing of the evidence will not be overturned unless it is arbitrary, capricious, or contrary to law. Furthermore, an applicant is not made more or less suitable for a clearance based on how the Judge’s decision might affect the applicant. Adverse decision affirmed. CASENO: 07-09098.a1 DATE: 04/16/2009 DATE: April 16, 2009 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-09098

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 April 4, 2008, 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 January 30, 2009, after the hearing, Administrative Judge Paul J. Mason denied Applicant’s request for a security clearance. Applicant 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. Specifically, Applicant contends that the Judge did not give adequate weight to her evidence of mitigation, and she points out the negative impact that an adverse security clearance decision will have on her job and her ability to pay her debts. The Judge made the following pertinent findings of fact: The SOR alleges $42,482 in delinquent debts, and Applicant admitted almost all the allegations. The Judge found in Applicant’s favor as to three of the debts. Applicant attributes many of her financial difficulties to her second husband’s job loss and his ensuing emotional problems. Applicant’s husband filed for bankruptcy in 2005, but Applicant did not join in the petition because she did not want to jeopardize her security clearance. In October 2007, Applicant enrolled in a debt consolidation program with a down payment of $500. At that time, Applicant was unable to begin the prescribed payments of $300 per month to pay down her debts, but was scheduled to do so as of October 31, 2008, just after the hearing. Applicant also hired a credit service firm to challenge the amount and validity of her debts. That service charged $80 per month and completed its process in August 2008. In November 2006, Applicant had $31.30 a month left after all her expenses. She now has $400 left due to salary increases, and she has developed a budget with help from a counselor at her church. Applicant submitted several character reference letters. In her appeal brief, Applicant argues that the Judge did not give adequate weight to her evidence of mitigation. 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. A party’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. 07-00553 at 2 (May 23, 2008). Applicant points out that an adverse security clearance decision will cause her to lose her job and will hinder her ability to continue to improve her financial situation. An applicant is not made more or less suitable for a security clearance based on how the Judge’s decision might affect the applicant. See, e.g., ISCR Case No. 03-21012 at 4 (App. Bd. Aug. 31, 2005). In this case, the Judge discussed the relevant disqualifying and mitigating conditions under Guideline F. Looking at both the favorable and unfavorable record evidence, the Judge reasonably explained why Applicant’s evidence of mitigation did not overcome the government’s security concerns. The Board does not review a case de novo. The favorable 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. 02-28041 at 4 (App. Bd. Jun. 29, 2005). Given the record that was before him, the Judge’s ultimate unfavorable decision is sustainable.

ORDER

The Judge’s decision 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