Loading case…

ISCR 08-06506: Guideline F security clearance appeal, denied (2010) · CASE

ISCR Case 08-06506denied

Case headnote

ISCR Case No. 08-06506

Jul 30, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

A former Air National Guard member was denied a security clearance under Guideline F (Financial Considerations) due to numerous delinquent debts and the absence of a reasonable repayment plan. The applicant's financial issues included outstanding medical expenses and mortgage payments.

The adjudicator determined that the applicant's underemployment and choice not to pursue full-time work were within his control, thus failing to satisfy mitigating conditions. Specifically, the applicant did not demonstrate a good-faith effort to resolve his financial difficulties.

The appeal board upheld the denial, concluding that the applicant had not shown sufficient financial responsibility. The decision highlighted the applicant's failure to address the disqualifying conditions related to his financial obligations.

Conditions referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 20(b)rejectedConditions Beyond ControlThe judge concluded that the applicant's circumstances were within his control.

Key rule quoted

“Direct evidence of nexus between proven conduct or circumstances under any of the guidelines and security eligibility is not required.”

Procedural posture

SOR issuedJun 4, 2009
Answer filed—
Hearing heldMay 7, 2010
Decision dateJul 30, 2010

Cite for

Insufficient Financial Responsibility Under Guideline F
Rejection of Mitigating Conditions Related to Personal Control
Nexus Between Financial Issues and Security Eligibility Not Requiring Direct 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 his request for a security clearance based on financial considerations. The applicant raised several issues on appeal, including claims that the Judge failed to consider favorable evidence and link his financial situation to potential coercion. The Board affirmed the Judge's decision, finding that the Judge adequately considered the evidence and provided a rational basis for the denial.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRobert Robinson Gales 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 failed to consider record evidence favorable to Applicant.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
The Judge failed to link Applicant’s financial situation to the likelihood of coercion.
Mitigation wrongly applied / not applied, raised by the applicantRejected
The Judge erred in his application of the pertinent mitigating conditions.
Whole-person analysis, raised by the applicantRejected
The Judge’s whole-person analysis is erroneous.

Why the Board ruled this way

The Judge examined the relevant data and articulated a satisfactory explanation for the decision, including a rational connection between the facts found and the choice made regarding the mitigating conditions and whole-person factors.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan (Chair)
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: Direct evidence of nexus between proven conduct or circumstances under any of the guidelines and security eligibility is not required. Adverse decision affirmed. CASENO: 08–06506.a1 DATE: 07/30/2010 DATE: July 30, 2010 In Re: -----

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-06506

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Eric J. McNeilus, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On June 4, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the See Directive, Enclosure 2 ¶ 20(b), which mitigates security concerns when “the conditions that resulted in the financial problem were largely beyond the person’s control . . . and the individual acted responsibly under the circumstances[.]” basis for that decision–security concerns raised under Guideline F (Financial Considerations) of Department of Defense Directive 5520.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On May 7, 2010, after the hearing, Administrative Judge Robert Robinson Gales denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge failed to consider record evidence favorable to Applicant; whether the Judge failed to link Applicant’s financial situation to the likelihood of coercion; whether the Judge erred in his application of the pertinent mitigating conditions; and whether the Judge’s whole-person analysis is erroneous. Consistent with the following discussion, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: Applicant is an employee of a Defense contractor. He served in a state Air National Guard (ANG) from 1996 to 2006, during which time he held a security clearance. He holds an associate’s degree. Applicant has numerous delinquent debts, for medical expenses, mortgage payments, cell phone services, etc. Applicant experienced some employment difficulties when he was discharged from the ANG due to his being too old for pilot training and to his not having a bachelor’s degree. In evaluating Applicant’s case, the Judge noted his period of underemployment following his discharge form the ANG. However, the Judge also concluded that Applicant’s decision not to seek full time employment after his discharge, in hopes of securing another ANG position, was a circumstance within his control and, accordingly, of little mitigating force. He also concluded that some of Applicant’s claims to have paid off debts were not true, that Applicant presented no reasonable basis to dispute any of his debts, and that Applicant had not demonstrated a reasonable plan to address delinquent debts. Applicant contends that the Judge failed to consider record evidence favorable to his case for mitigation, for example that his financial condition is currently stable, that he had to relinquish his hopes of becoming an ANG pilot, and his contention that he did not purposely ignore his creditors’ claims for payment. However, a Judge is presumed to have considered the entire record. See, e.g., ISCR Case No. 08-06873 at 2 (App. Bd. Dec. 18, 2009). Applicant’s contentions on appeal are not enough to rebut that presumption. Applicant contends that the Judge failed to identify a link between his financial situation and his potential to be coerced into committing security violations. To the extent that Applicant is raising a nexus issue, the Directive presumes that there is a nexus or rational connection between proven circumstances under any of its Guidelines and an applicant’s security eligibility. See, e.g., ISCR Case No. 03-22643 at 7 (App. Bd. Jun. 24, 2005). Direct or objective evidence of nexus is not required. See, e.g., ISCR Case No. 03-18218 at 3 (App. Bd. Oct. 7, 2005). Applicant notes that the Judge discusses the other factors delineated in Enclosure 2, ¶ 2(a) but not the potential for coercion. Applicant’s assertion is only partly accurate. The Judge did cite to Enclosure 2, ¶ 2(a)(8) at the top of page 16 but failed to recite it again on a similar list on page 17. The Board does not read sentences in isolation. A fair reading of the Judge’s decision suggests that he gave adequate consideration to the facts and circumstances of Applicant’s case. After reviewing the record, we conclude that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found that the choice made,” both as to the mitigating conditions and the whole-person factors. 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 Judge’s adverse security clearance decision is sustainable on this record. “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. 581, 528 (1988).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, 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