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ISCR Case 07-15804.a1 — CASE

ISCR Case 07-15804.a1denied

Case Headnote

ISCR Case No. 07-15804.a1

Dec 29, 2008· Hon. Jeffrey D. Billett· appeal

Summary

The applicant, representing himself, was denied a security clearance under Guideline F (Financial Considerations) due to a history of not meeting financial obligations. While some mitigating conditions were considered, the adjudicator found that disqualifying conditions F.1 were not sufficiently overcome by mitigating conditions F.2.

At the time of the hearing, the applicant still had significant outstanding debts and had not demonstrated sufficient progress in resolving these financial problems. The appeal board affirmed the denial, emphasizing that financial responsibility is crucial for national security interests.

Ultimately, the applicant's ongoing financial issues and lack of demonstrated progress in resolving his debts led to the denial of the security clearance.

Conditions Referenced

Disqualifying

F.1raisedFinancial Considerations

Mitigating

F.2rejectedFinancial ConsiderationsThe presence of some mitigating evidence does not alone compel a favorable decision.

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 issuedApr 22, 2008
Answer filed—
Hearing heldOct 8, 2008
Decision dateDec 29, 2008

Cite For

Affirmation of Adverse Decisions Based on Ongoing Financial Issues
Importance of Substantial Evidence in Financial Clearance Cases
Rejection of Mitigating Evidence When Disqualifying Conduct Is Serious

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 a denial of a security clearance based on financial considerations under Guideline F. The applicant argued that the Judge erred in factual findings and in weighing mitigating evidence. The Board affirmed the Judge's decision, finding no harmful error and that the decision was supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMark W. Harvey — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contends that the Judge did not give sufficient weight to his mitigating evidence.
Erroneous finding of fact — raised by the applicantRejected
Applicant argues that it was a factual error for the Judge to find that the Army declined to accept him on active duty.

Why the Board ruled this way

The Board found that the Judge's findings were based on substantial evidence and that the adverse decision was not arbitrary, capricious, or contrary to law.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Jeffrey D. Billett
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 DIGEST: The challenged finding is based on substantial evidence. Furthermore there is no indication that the Judge drew any pejorative inferences from the finding. Adverse decision affirmed. CASENO: 07-15804.a1 DATE: 12/29/2008 DATE: December 29, 2008 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-15804

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 22, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of The Judge’s favorable findings as to SOR paragraphs 1(d), (g)-(k), (m), and (n) are not at issue on appeal. Decision at 3. Applicant’s Brief at 1. Transcript at 23. Decision at 10. Id. 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 October 8, 2008, after the hearing, 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 factual findings are supported by substantial evidence; and whether the Judge’s adverse clearance decision under Guideline F is arbitrary, capricious or contrary to law.1 Applicant contends that the Judge erred as to one of his findings of fact. He also contends that the Judge’s adverse decision should be reversed because the Judge did not give sufficient weight to his mitigating evidence, which indicated that his financial problems resulted from the operation of a business and were unlikely to recur. Applicant has not demonstrated the Judge erred in his findings or that his decision is arbitrary, capricious or contrary to law. (1) Applicant argues that it was factual error for the Judge to find that: “Because he was passed over for promotion, the Army declined to accept him on active duty as a volunteer in 2001- 2002.” Applicant claims that the erroneous finding demonstrates that the Judge failed to understand the distinguished nature of his military service. The Board does not find this argument persuasive. The finding at issue is based upon Applicant’s own testimony at the hearing: “ . . . when I tried to get back in, the Army said no, you’re a lame duck. Because you’ve been passed over twice for major, we won’t take you back in.” The Judge did not appear to draw any pejorative inferences from that testimony insofar as the distinguished nature of Applicant’s military service was concerned. On the contrary, the Judge later noted in his decision that: “ . . . he is an honest, hard- working employee, a good father, and patriot. He is an honorable former Army officer. I have no doubt that he is loyal and would give his life for the United States.” The Judge then went on to base his adverse decision on the security concerns raised by Applicant’s financial problems stating: “Notwithstanding these positive attributes, he has not established his financial responsibility . . .”6 Substantial evidence is 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). “Applicant learned of the security significance of his delinquent debt when he received the SOR, and did not use the next five months to address his six delinquent SOR debts. He made no real progress in resolving these six delinquent SOR debts.” Decision at 11. Accordingly, after reviewing the record, the Board concludes that the challenged finding is based on substantial evidence, or constitutes a reasonable characterization or inference that can be drawn from the record. There is no record evidence that convinces the Board that, as regards his military service, the Judge misconstrued Applicant’s hearing testimony. 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) 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 serious history of not meeting financial obligations. At the time of the hearing, Applicant still had significant outstanding debts, and was still trying to resolve his financial problems. In light of the foregoing, the Judge could reasonably conclude that Applicant’s financial 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 seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. He found in favor of Applicant as to several of the SOR allegations. However, he 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. 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)). “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). 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: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, 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