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ISCR Case 07-11259.a1 — CASE

ISCR Case 07-11259.a1denied

Case Headnote

ISCR Case No. 07-11259.a1

Sep 10, 2008· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, representing himself, was denied under Guideline F (Financial Considerations) due to a prolonged history of unmet financial obligations. This included a multi-year failure to pay both state and federal taxes.

The government raised disqualifying conditions under Adjudicative Guideline (AG) ¶ 19. While the applicant claimed mitigating efforts to resolve these debts, the judges found the evidence insufficient to overcome security concerns. Mitigating conditions under AG ¶ 20 were considered but not applied.

The denial was based on the applicant's extensive history of financial irresponsibility and the fact that, at the time of the decision, substantial debt remained outstanding. The judges noted that the applicant had only recently begun to address his financial problems, emphasizing the ongoing nature of these issues.

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

“The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision.”
— ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007)

Procedural Posture

SOR issuedNov 20, 2007
Answer filed—Applicant requested decision on written record.
Hearing heldMay 12, 2008
Decision dateSep 10, 2008

Cite For

Denial of Security Clearance Due to Ongoing Financial Issues Under Guideline F
Insufficient Mitigating Evidence to Overcome Disqualifying Financial Conduct
The Standard for Weighing Mitigating Evidence 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 was regarding the denial of a security clearance based on financial considerations under Guideline F. The applicant argued that the judge did not give sufficient weight to mitigating evidence. The Board affirmed the judge's decision, finding no harmful error in the judge's analysis and conclusion.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMark W. Harvey — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge’s adverse decision is arbitrary, capricious or contrary to law.

Why the Board ruled this way

The Board concluded that the Judge examined the relevant data and articulated a satisfactory explanation for his decision, including a rational connection between the facts found and the choice made.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Michael D. Hipple
Jean E. Smallin
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 DIGEST: Applicant had a lengthy history of not meeting financial obligations including state and Federal taxes for multiple years. Adverse decision affirmed. CASENO: 07-11259.a1 DATE: 09/10/2008 DATE: September 10, 2008 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-11259

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 20, 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 that the case be decided on the written record. On May 12, 2008, after considering the record, Administrative Judge Mark W. Harvey 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 adverse clearance decision is arbitrary, capricious or contrary to law. Applicant contends that the Judge’s adverse decision should be reversed because the Judge did not give sufficient weight to Applicant’s mitigating evidence, which established that he was making significant efforts to resolve his outstanding tax debts. In support of his contention, Applicant summarizes the evidence he presented below, and argues that it is sufficient to support a favorable decision under the whole-person concept. Applicant has not demonstrated the Judge erred. 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 a lengthy history of not meeting financial obligations, including the failure to pay state and federal taxes for multiple years. At the time the case was submitted for decision, Applicant still had a substantial outstanding debt, and had only recently undertaken significant action to try to resolve his financial problems. In light of the foregoing, the Judge could reasonably conclude that those problems were still ongoing. See, e.g., ISCR Case No. 05-07747 at 2 (App. Bd. Jul. 3, 2007). 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. He found in favor of Applicant as to many of the SOR allegations. However, he reasonably explained why the mitigating evidence was insufficient to 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. 06-11172 at 3 (App. Bd. Sep. 4, 2007). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for his 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 whole-person analysis and his 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 D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board