CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 08-01392.a1 — CASE

ISCR Case 08-01392.a1denied

Case Headnote

ISCR Case No. 08-01392.a1

Feb 24, 2011· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance primarily due to unmitigated financial issues and personal conduct concerns. The applicant failed to demonstrate timely repayment of delinquent debts, which raised concerns under Guideline F (Financial Considerations).

Additionally, the applicant falsified information on his security clearance application, a matter addressed under Guideline E (Personal Conduct). The judges determined that the applicant did not adequately mitigate the security concerns stemming from this false information.

The appeal board affirmed the denial, concluding that the judge's decision was not arbitrary or contrary to law. The denial was based on the applicant's failure to resolve his financial obligations and his inability to mitigate the security risks associated with providing false information during the application process.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

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 8, 2010
Answer filed—
Hearing heldDec 7, 2010
Decision dateFeb 24, 2011

Cite For

Denial of Security Clearance Due to Ongoing Financial Issues Under Guideline F
Falsification of Application Under Guideline E
Affirmation of Judge's Decision Based on Lack of Timely Debt Repayment

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 and personal conduct. The applicant argued that the Judge's decision was arbitrary and that his efforts to resolve debts were sufficient. The Board affirmed the Judge's decision, finding no harmful error in the assessment of evidence and credibility.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJennifer I. Goldstein — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse decision was arbitrary, capricious, or contrary to law.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant contended that the Judge erred in concluding that his efforts to resolve his indebtedness were insufficient to mitigate security concerns.
Erroneous finding of fact — raised by the applicantRejected
Applicant claimed the Judge failed to accept his explanation regarding the omission of information from his Security Clearance Application.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for her decision, including a rational connection between the facts found and the choice made.

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; Guideline E DIGEST: Applicant did not demonstrate timely repayment of delinquent debts. He failed to mitigate the security concerns arising from his false answer to the security clearance application. Adverse decision affirmed. CASE NO: 08-01392.a1 DATE: 02/24/2011 DATE: February 24, 2011 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-01392

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 8, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On December 7, 2010, after the hearing, Administrative Judge Jennifer I. Goldstein denied Applicant’s request for a security clearance. Applicant 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 argues that the Judge’s adverse decision should be reversed because the Judge: 1) erred in concluding that Applicant’s efforts to resolve his indebtedness were insufficient to mitigate the government’s security concerns, and 2) failed to accept his explanation as to why his omission of information from his Security Clearance Application (SCA) was not deliberate and intentional. Applicant’s arguments do not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. On appeal, Applicant submits a credit report which post-dates the Judge’s decision by three weeks and was not part of the record evidence. The Board cannot consider this new evidence. See Directive ¶ E3.1.29. 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). In this case, the Judge found that Applicant had a lengthy history of not meeting financial obligations. At the time the case was submitted for decision, Applicant still had significant outstanding debts, and was still trying to resolve his financial problems. Although some of his outstanding debts had been paid, his actions had not been timely, and two of the debts had been paid involuntarily through garnishment. Decision at 7. 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 length and seriousness of the disqualifying conduct, considered the possible application of relevant conditions and factors. While she found in favor of Applicant as to several of the SOR factual allegations, she reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. A party’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). With respect to the falsification of Applicant’s SCA, the Judge specifically considered Applicant’s explanations for why he failed to disclose the information in question. Decision at 2-3, 12. However, the Judge was not bound, as a matter of law, to accept or reject that explanation. Rather, the Judge considered that explanation in light of the record evidence as a whole, including his statement that he had failed to disclose his outstanding debts because he was embarrassed, and concluded there was a sufficient basis to find that Applicant’s omissions were deliberate and intentional. On this record, the Judge’s finding of deliberate falsification is sustainable. See Directive ¶ E3.1.32.1. The Board does not review a case de novo. After reviewing the record, the Board concludes that 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). Therefore, the Judge’s unfavorable security clearance 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 Chairperson, 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