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ISCR Case 08-07290.a1 — CASE

ISCR Case 08-07290.a1denied

Case Headnote

ISCR Case No. 08-07290.a1

deniedNov 17, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A 30-year-old applicant, who provides technical support to a Defense contractor, was denied a security clearance due to financial considerations under Guideline F. The applicant faced concerns regarding trustworthiness stemming from seven admitted overdue debts, which established the government's initial case for denial.

While the applicant acknowledged the debts, he disputed some of the amounts and argued that his financial situation would not lead to criminal activity or security breaches. The judge, however, found the applicant's mitigating evidence insufficient to overcome the government's concerns about his trustworthiness.

The appeal board affirmed the denial, concluding that the applicant's financial issues were significant enough to raise trustworthiness concerns. The adverse effect of this negative determination on the applicant's employment was not considered relevant to the trustworthiness evaluation.

Why the Applicant Was Denied

The applicant admitted to seven overdue debts, establishing the government's prima facie case.
The judge found the applicant's mitigating evidence insufficient to overcome the government's trustworthiness concerns.
The adverse effect of a negative trustworthiness determination on the applicant's employment was not considered relevant to the trustworthiness evaluation.

Conditions Referenced

Disqualifying

F.1raisedInability or Unwillingness to Satisfy Debts

Mitigating

F.2rejectedThe Conditions That Led to the Financial Difficulties Were Beyond the Applicant's ControlThe judge found that the applicant's financial situation was serious and ongoing.
F.3rejectedThe Applicant Has Made Efforts to Repay DebtsThe applicant had not made payments on the overdue debts since 2003.

Key Rule Quoted

“The Directive presumes a nexus between proven conduct and an applicant’s trustworthiness eligibility.”

Procedural Posture

SOR issuedApr 22, 2009
Answer filed—
Hearing heldSep 21, 2009
Decision dateNov 17, 2009

Cite For

Trustworthiness Concerns Under Guideline F Due to Financial Issues
Nexus Between Proven Conduct and Trustworthiness Eligibility
Consideration of Off-duty Conduct in Trustworthiness Evaluations

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

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 Directive presumes a nexus between proven conduct and an applicant’s trustworthiness eligibility. An applicant with exemplary job performance may engage in conduct that has negative trustworthiness implications. Adverse decision affirmed. CASENO: 08-07290.a1 DATE: 11/17/2009 DATE: November 17, 2009 In Re: ---------------- Applicant for Public Trust Position ) ) ) ) ) ) ) ) ADP Case No. 08-07290

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 trustworthiness designation. On April 22, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–trustworthiness 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 21, 2009, after the hearing, Administrative Judge Thomas M. Crean denied Applicant’s request for a trustworthiness designation. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. Specifically, Applicant maintains that no evidence was presented at the hearing to show that his financial situation would cause him to engage in criminal activity or cause a security breach. Applicant also notes that he will not be able to improve his financial situation if he loses his job due to denial of a trustworthiness designation. Finding no error, we affirm the Judge’s decision. The Judge made the following relevant findings of fact: Applicant is 30 years old and provides technical support to a Defense contractor. The SOR in Applicant’s case lists seven overdue debts (primarily credit card balances and a car repossession). In his answer to the SOR, Applicant admits all of the debts, but disputes the amounts owed to two of the creditors. Applicant’s credit was good until he lost a job in 2003. Applicant states that he lost that job because his employer found out that he was seeking another job. Applicant was out of work for approximately a month and then began working at a job that paid about half his former salary. After about a year, Applicant began working for his current employer at approximately the salary he was earning before he lost his job in 2003 and now earns more that he did at the job he lost. Applicant has made no payments on the overdue debts since 2003, although he had indicated that he would begin doing so in 2007. A supervisory witness from Applicant’s job testified that he is a good person and a conscientious and dependable worker.

A Judge is required to “examine the relevant data and articulate a satisfactory explanation for” the 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)). Applicant contends that there is no evidence that he is a security risk or would commit any type of crime because of his financial situation. Applicant admitted the alleged overdue debts listed in the SOR, even if he disputed some of the amounts. The Directive presumes there is a nexus, or rational connection, between proven conduct under any of its Guidelines and an applicant’s trustworthiness eligibility. See, e.g., ADP Case No. 07-07799 at 2 (App. Bd. Dec. 5, 2008). Therefore, Department Counsel is not required to present evidence that shows a direct or objective nexus between an applicant’s conduct and circumstances and their trustworthiness eligibility. The federal government need not wait until an applicant actually mishandles or fails to properly handle sensitive information before it can deny or revoke access to such information. See, e.g, ADP Case No. 06-09293 at 2 (App. Bd. Jun. 6, 2007). Trustworthiness determinations are not limited to consideration of an applicant’s job performance or conduct during duty hours, and off-duty conduct can be relevant in assessing an applicant’s trustworthiness eligibility. See, e.g., ADP Case No. 06- 07581 at 2 (App. Bd. May 17, 2007). An applicant with good or exemplary job performance may engage in conduct that has negative trustworthiness implications. See, e.g., ADP Case No. 06-09293 supra at 2. The Directive’s Guidelines set forth a variety of examples of off-duty conduct and circumstances which are of trustworthiness concern to the government. In his response to the government’s SOR, Applicant admitted the alleged overdue debts. His admissions established the government’s prima facie case. The burden then shifted to Applicant to rebut, explain, extenuate, or mitigate the facts he admitted. The ultimate burden of persuasion to obtain a favorable trustworthiness determination rests with Applicant. See Directive ¶ E3.1.15. 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. 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., ADP Case No. 06-13629 at 3 (App. Bd. Sep. 4, 2007). Applicant testified that his financial situation was due to events beyond his control in his work history and that he planned to begin paying his overdue debts soon. 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 mitigating conditions. He reasonably explained why the evidence Applicant had presented in mitigation was insufficient to overcome the government’s trustworthiness concerns. The Board does not review a case de novo. Given the record that was before him, the Judge’s ultimate unfavorable trustworthiness determination under Guideline F is sustainable. Thus, the Judge did not err in denying Applicant a trustworthiness designation. Applicant contends that an negative trustworthiness determination will cause him to lose his job and therefore his ability to repay his overdue debts. The adverse effect that an unfavorable trustworthiness determination might have on Applicant’s employment is not a factor that can be considered in evaluating an applicant’s trustworthiness eligibiility. See, e.g., ADP Case No. 07- 09114 at 2 (App. Bd. Jan. 28, 2009).

ORDER

The decision of the Judge denying Applicant a trustworthiness designation 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board