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ISCR 07-13306: Guideline F security clearance appeal, denied (2008) · CASE

ISCR Case 07-13306denied

Case headnote

ISCR Case No. 07-13306

Sep 19, 2008· Hon. Michael D. Hipple· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline F (Financial Considerations) due to financial difficulties. The appeal board upheld this denial, finding the applicant's mitigation arguments insufficient to alleviate security concerns.

The denial stemmed from disqualifying conditions outlined in AG ¶ 19. The judge found the applicant's financial issues were significantly linked to a previous drinking problem. Furthermore, the applicant failed to demonstrate that his mitigating evidence outweighed the disqualifying conduct.

Ultimately, the judge articulated a rational connection between the applicant's conduct and his security eligibility, leading to the denial of the security clearance.

Conditions referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Key rule quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”
Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural posture

SOR issuedFeb 25, 2008
Answer filed—
Hearing heldJun 19, 2008
Decision dateSep 19, 2008

Cite for

Insufficient Mitigation of Financial Difficulties Under Guideline F
Importance of Rational Connection Between Conduct and Security Eligibility
Burden of Proof Shifts to Applicant to Establish Mitigation After Government Raises Security Concerns

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 from a denial of a security clearance based on financial considerations under Guideline F. The applicant argued that the Judge's findings were not supported by substantial evidence and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding the evidence supported the adverse ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowShari Dam denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
The Judge erred in finding that Applicant’s financial difficulties were due in part to a previous drinking problem.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
The Judge’s adverse security clearance decision under Guideline F is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Judge’s findings are supported by substantial evidence and the adverse decision is sustainable. The Judge reasonably explained why the evidence in mitigation was insufficient to overcome the government’s security concerns.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decision

Appeal Board panel

Michael D. Hipple
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 challenged findings are supported by substantial record evidence and are sustainable. The Judge reasonably explained why the evidence in mitigation was insufficient to overcome the government’s security concerns. Adverse decision affirmed. CASENO: 07-13306 DATE: 00/19/2008 DATE: September 19, 2008 In Re: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-13306

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se Decision at 2. (“Applicant’s financial difficulties began occurring seven to eight years ago. He attributed them to personal problems, medical bills for his daughter’s various surgeries, a lack of sufficient income, and a previous drinking problem.”) Applicant’s Brief at 1-2. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On February 25, 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 June 19, 2008, after the hearing, Administrative Judge Shari Dam 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 issues on appeal: whether the Judge’s findings are based on substantial evidence; and whether the Judge’s adverse security clearance decision under Guideline F is arbitrary, capricious, or contrary to law.

(1) Applicant contends that the Judge erred in finding that Applicant’s financial difficulties were due in part to “a previous drinking problem.” In support of that contention, he argues that he does not have “a drinking problem,” but instead has “. . . a problem with drinking beer. The problem was, and is, medical. I have peripheral neuropathy in both feet and beer exacerbates the problem.”2 The Board’s review of a Judge’s findings is limited to determining if they are supported by substantial evidence—such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the same record. Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966). After reviewing the record, the Board concludes that the Judge’s findings are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. Applicant has not identified any harmful error likely to change the outcome of the case. Considering the record evidence as a whole, the Judge’s material findings of security concern are sustainable. See, e.g., ISCR Case No. 06-21025 at 2 (App. Bd. Oct. 9, 2007). (2) Applicant also contends that the favorable evidence in the record was sufficient, as a matter of law, to overcome any security concerns presented by his financial difficulties. Specifically, he argues that his failure to pay off his outstanding debts was not due to “procrastination,” because he “. . . has only reached the level where payment of outstanding debts was possible in the last five Applicant’s Brief at 1. The Judge also found that several of the debts listed in SOR were duplicates. The debts in paragraphs 1(a) and 1(b) were the same debts, as were the debts listed in paragraphs 1(f) and 1(m). or six years,” and during that time period he did pay off a substantial student loan. He notes that he has had excellent job performance and that he has held a security clearance without incident for 15 years. Applicant’s arguments do not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. The Directive presumes there is a nexus or rational connection between proven conduct under any of the Guidelines and an applicant’s security eligibility. See, e.g., ISCR Case No. 02-22325 at 3-4 (App. Bd. July 30, 2004). Security clearance determinations are not limited to consideration of work performance or conduct during duty hours. See, e.g., ISCR Case No. 04-08623 at 5 (App. Bd. July 29, 2005). The federal government need not wait until an applicant actually mishandles or fails to properly handle or safeguard classified information before it can deny or revoke access to such information. See Adams v. Laird, 420 F.2d 230, 238-239 (D.C. Cir. 1969). The absence of security violations does not bar or preclude an adverse security clearance decision. See ISCR Case No. 01- 03357 at 4 (App. Bd. Dec. 13, 2005).

Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The presence of some mitigating evidence does not alone compel the Judge to make a favorable 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. 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. 07-05632 at 2 (App. Bd. May 13, 2008). A review of the record indicates that 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 gave Applicant credit for debts that he had paid and found in his favor with respect to several of the factual allegations. However, she reasonably explained why the evidence which the 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 3 (App. Bd. Sep. 4, 2007). 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). “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). Accordingly, the Judge’s adverse decision 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board