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ISCR Case 08-01105.a1 — CASE

ISCR Case 08-01105.a1denied

Case Headnote

ISCR Case No. 08-01105.a1

Dec 15, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing herself, was denied a security clearance under Guideline F (Financial Considerations) due to unmitigated financial difficulties. The Appeal Board affirmed the Judge's decision, finding that the denial was supported by substantial evidence.

The Judge initially raised Disqualifying Condition F1, indicating significant financial issues. While Mitigating Conditions F2 and F3 were considered, the applicant did not provide sufficient evidence to resolve the government's financial concerns.

Ultimately, the applicant failed to demonstrate that the Judge's findings were arbitrary or capricious, and her claims of factual errors did not identify any harmful error that would likely change the outcome. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

F1raisedFinancial Considerations

Mitigating

F2rejectedInability to Satisfy DebtsThe Judge weighed the mitigating evidence against the applicant's financial history and found it insufficient.
F3rejectedGood Faith Effort to Repay DebtsThe Judge considered the applicant's evidence of mitigation but determined it did not outweigh the government's concerns.

Key Rule Quoted

“Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.”
— Directive ¶ E3.1.15.

Procedural Posture

SOR issuedApr 16, 2008
Answer filed—
Hearing heldSep 30, 2008
Decision dateDec 15, 2008

Cite For

Affirmation of the Burden-shifting Principle in Security Clearance Cases
Insufficient Evidence of Mitigation Under Guideline F
The Standard for Reviewing a Judge's Findings of Fact and Weighing of Evidence

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 her request for a security clearance based on financial considerations. The applicant argued that the Judge made a factual error regarding her high school graduation date and did not properly weigh her evidence of mitigation. The Board affirmed the Judge's decision, finding no harmful error that would change the outcome.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRobert J. Tuider — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Erroneous finding of fact — raised by the applicantRejected
Applicant claimed the Judge made a factual error regarding the year of her high school graduation.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argued that the Judge did not give proper weight to her evidence of mitigation.

Why the Board ruled this way

The Board found that the Judge's material findings were based on substantial evidence and that the applicant did not identify any harmful error likely to change the outcome of the case. The Judge reasonably weighed the evidence and articulated a satisfactory explanation for the decision.

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
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: Although Applicant identifies an error in the Judge’s decision with regard to her high school graduation date, she does not identify any error likely to change the outcome of the case. Adverse decision affirmed. CASENO: 08-01105.a1 DATE: 12/15/2008 DATE: December 15, 2008 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-01105

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 16, 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 September 30, 2008, after the hearing, Administrative Judge Robert J. Tuider 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 made a factual error regarding the year of her high school graduation, and whether the Judge gave proper weight to Applicant’s evidence of mitigation, including the documentation Applicant submitted during the period after the hearing when the record was left open for such submissions. Applicant requests reversal of the Judge’s adverse decision, in part because the Judge stated the year of her high school graduation as 1987 instead of 1997. She also restates the circumstances of her financial difficulties. To the extent that any of that information is new evidence that was not provided at the hearing, the Board cannot consider it. See Directive ¶ E3.1.29. Applicant states that the Judge held the record open after the hearing for her to submit evidence of credit counseling and proof of payment of her debts. Applicant maintains that the Judge stated that he would make his decision after she submitted that documentation. She argues that she provided documentation of payment of all her debts.

The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they are supported by substantial evidence—“such relevant evidence as a reasonable mind might accept as adequate to support 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 material findings are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. Although Applicant points out an error with regard to the year of her high school graduation, she 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). Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. In his Findings of Fact, the Judge specifically referred to Applicant’s testimony of mitigating circumstances and to the documentation she submitted after the hearing. Decision at 2-5. However, 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, 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, 2007). A review of the record indicates that the Judge weighed the mitigating evidence offered by Applicant against her financial history and considered the possible application of relevant mitigating conditions and factors. Decision at 7-8. The Judge reasonably explained why the evidence Applicant had presented in mitigation was insufficient to overcome the government’s security concerns. Id. 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). 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, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines 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.’” Dep’t 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 Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, 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