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ISCR Case 07-10729.a1 — CASE

ISCR Case 07-10729.a1denied

Case Headnote

ISCR Case No. 07-10729.a1

Aug 29, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

A 51-year-old defense contractor was denied a security clearance under Guideline F, Financial Considerations, due to numerous delinquent debts totaling $64,000. The judge identified a rational connection between the applicant's financial irresponsibility and the adverse decision, specifically citing a lack of good faith effort to resolve these obligations.

The debts included those incurred by the applicant's wife, for which he was legally responsible. Disqualifying conditions under Guideline F, specifically AG ¶ 20, were raised, while no mitigating conditions under AG ¶ 21 were applied.

The appeal of the denial was unsuccessful, as the judge's findings were supported by substantial evidence, leading to the final decision to deny the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe applicant did not demonstrate a good faith effort to resolve his debts.

Key Rule Quoted

“Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the record.'”
— Directive ¶ E3.1.32.1

Procedural Posture

SOR issuedJan 29, 2009
Answer filed—
Hearing heldJun 4, 2008
Decision dateAug 29, 2008

Cite For

Denial of Security Clearance Due to Financial Irresponsibility Under Guideline F
Lack of Good Faith Effort to Resolve Debts as a Basis for Adverse Decision
Substantial Evidence Standard in Security Clearance Cases

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 for a security clearance who had numerous delinquent debts totaling $64,000. The Administrative Judge denied the clearance, citing a lack of responsible action regarding the debts. The applicant appealed, arguing that the Judge's findings were not supported by substantial evidence and that the mitigating conditions were misapplied. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMartin H. Mogul — 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's findings of fact were not based on substantial record evidence.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant contended that the Judge erred in his application of the Guideline F mitigating conditions.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge's findings were based on substantial evidence and that any errors were harmless, affirming the adverse decision regarding the security clearance.

Standard of review applied

Substantial-evidence reviewNo de-novo re-decisionNo new evidence on appealArbitrary-and-capricious reviewProcedural compliance

Appeal Board panel

Michael Y. Ra’anan — Chair
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: Applicant has numerous delinquent debts totaling $64,000. The Judge has drawn a rational connection between the facts found and his ultimate unfavorable decision. Adverse decision reversed. CASENO: 07-10729.a1 DATE: 08/29/2008 DATE: August 29, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-10729

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se In his decision, the Judge stated that Applicant had not acted responsibly in regard to his debts “since he has made no effort to legally end his marriage with his wife, despite being separated from her for more than five years.” Decision at 8. It is beyond the jurisdiction of these proceedings to evaluate an applicant’s (otherwise permissible) decisions regarding marriage and divorce. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On January 29, 2009, 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 June 4, 2008, after the hearing, Administrative Judge Martin H. Mogul denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether certain of the Judge’s findings of fact were based upon substantial record evidence; and whether the Judge erred in his application of the Guideline F mitigating conditions. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is a 51 year old employee of a defense contractor. He is married to his second wife, though they live separately. He served in the U.S. military from 1970 to 1980. Applicant has numerous delinquent debts, the amounts alleged in the SOR totaling nearly $64,000. A large number of these debts were actually incurred by Applicant’s wife, due to medical bills and to her writing checks with insufficient funds, etc. These are debts for which Applicant is legally responsible, along with his wife. In the Analysis section of his decision, the Judge stated that Applicant has not demonstrated a good faith effort to resolve his debts. Furthermore, in performing his whole-person analysis, the Judge concluded that the record evidence of Applicant’s debts left him with serious doubt as to Applicant’s fitness for a clearance. We have examined the Judge’s findings in light of the record as a whole. The Judge’s material findings of security concern are based upon substantial record evidence. See Directive ¶ E3.1.32.1. (Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the record.”) We have considered Applicant’s arguments on appeal and conclude that, to the extent that the Judge’s decision contains error, it is harmless in that, even if such error did not occur, the Judge would have decided the case in the same way. See, e. g., ISCR Case No. 06-07247 at 2 (App. Bd. Feb. 13, 2008). The Judge has drawn “a rational connection between the facts found” and his ultimate adverse security clearance decision, both as regards the Guideline F mitigating conditions and the whole-person analysis. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). See also 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)). The Judge’s decision that “it is not clearly consistent with national security to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 10. See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED.

Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, 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