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ISCR Case 07-10396.a1 — CASE

ISCR Case 07-10396.a1denied

Case Headnote

ISCR Case No. 07-10396.a1

Oct 2, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance primarily due to financial concerns under Guideline F (Financial Considerations), with Guideline E (Personal Conduct) also cited. The denial was affirmed on appeal.

The applicant presented a serious history of not meeting financial obligations, and significant outstanding debts remained unresolved at the time of the decision. These issues raised disqualifying conditions under Adjudicative Guideline (AG) ¶ 19.

While the applicant offered some mitigating evidence, which applied under AG ¶ 20, the judge determined it was insufficient to overcome the government's security concerns. Consequently, the applicant's ongoing financial issues and history of unfulfilled obligations led to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20rejectedFinancial ConsiderationsThe judge found the mitigating evidence insufficient to overcome the government's security concerns.

Key Rule Quoted

“Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision.”
— ISCR Case No. 05-02833 at 2 (App. Bd. Mar.19, 2007)

Procedural Posture

SOR issuedNov 21, 2007
Answer filed—
Hearing heldMay 8, 2008
Decision dateOct 2, 2008

Cite For

Denial of Security Clearance Based on Financial Considerations Under Guideline F
Insufficient Mitigating Evidence to Overcome Ongoing Financial Issues
Affirmation of a Judge's Decision When the Applicant's Financial History Is Serious and Unresolved

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 filed by the applicant after the Administrative Judge denied his request for a security clearance based on financial considerations and personal conduct. The applicant argued that the Judge's decision was arbitrary and capricious, citing new evidence of improved financial circumstances. The Board affirmed the Judge's decision, stating that it could not consider new evidence on appeal and that the Judge's findings were reasonable and supported by the record.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowErin C. Hogan — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's unfavorable clearance decision under Guideline F is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for her decision, including a rational connection between the facts found and the choice made.

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

Michael Y. Ra’anan — Chair
Michael D. Hipple
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; Guideline E DIGEST: The Board cannot consider new evidence on appeal. Adverse decision affirmed. CASENO: 07-10396.a1 DATE: 10/02/2008 DATE: October 2, 2008 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-10396

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) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On May 8, 2008, after the hearing, Administrative Judge Erin C. Hogan 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 unfavorable clearance decision under Guideline F is arbitrary, capricious, or contrary to law. Applicant asks that the Judge’s adverse clearance decision be reversed. In support of that request, Applicant states that since the hearing he has transferred to a new job at another company and has received a substantial pay raise. This new increase in pay has allowed him to re-enter the Consumer Credit Counseling Services Program, and to qualify for the California Child Support Division’s Compromise of Arrears Program. He argues that participation in these programs will mitigate the security concerns raised by his financial problems. The Board cannot consider Applicant’s new evidence on appeal. See Directive ¶ E3.1.29. Given the totality of the record evidence, Applicant’s submission on appeal does not demonstrate that the Judge’s decision is arbitrary, capricious, or contrary to law. Once there has been a concern articulated regarding an applicant’s security eligibility, there is a strong presumption against the grant or maintenance of a security clearance. Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the government th presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The application of disqualifying and 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. 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.” 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 this case, the Judge found that Applicant had a serious history of not meeting financial obligations. At the time the case was submitted for decision he still had significant outstanding debts and was still in the process of trying to resolve his financial problems. In light of the foregoing, the Judge could reasonably conclude that Applicant’s financial problems were recent and still ongoing. See, e.g., ISCR Case No. 07-10312 at 2 (App. Bd. Jul. 15, 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 conditions and factors. She found in favor of Applicant under Guideline E and as to some of the SOR allegations under Guideline F. However, she reasonably explained why the mitigating evidence was insufficient to overcome all of the government’s security concerns. The Board does not review a case de novo. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for her decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). Therefore, 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: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board