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ISCR 08-07540.a1: Guideline F security clearance appeal, granted (2010) · CASE

ISCR Case 08-07540.a1granted

Case headnote

ISCR Case No. 08-07540.a1

Jan 8, 2010· Hon. Jeffrey D. Billett· appeal

Summary

This security clearance decision, made under Guideline F (Financial Considerations), resulted in a GRANTED outcome for the applicant. The applicant, representing himself, successfully mitigated concerns related to his financial history.

The decision was based on several key factors. The applicant engaged in financial counseling and demonstrated a commitment to resolving his debts by making payments. Furthermore, he presented a clear plan for addressing his remaining financial obligations and was fully employed, indicating a stable income.

Applying mitigating conditions AG ¶ 20(a) and AG ¶ 20(b), the judge's comprehensive whole-person analysis ultimately supported a favorable assessment of the applicant's financial situation, leading to the granting of the security clearance.

Conditions referenced

Mitigating

AG ¶ 20(b)rejectedFinancial ConsiderationsThe judge's application of this condition was not supported by the record.
AG ¶ 20(a)appliedFinancial ConsiderationsThe applicant's financial counseling and debt repayment were mitigating factors.

Key rule quoted

“No authority for a conditional or contingent clearance.”

Procedural posture

SOR issuedApr 9, 2009
Answer filed—
Hearing heldOct 5, 2009
Decision dateJan 8, 2010

Cite for

Mitigating Factors in Financial Considerations Under Guideline F
Whole-person Analysis in Security Clearance Decisions
Prohibition Against Contingent Security Clearances

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 security clearance decision where the Administrative Judge granted the Applicant a clearance despite financial concerns. The Department Counsel appealed, arguing that the Judge erred in concluding that the Applicant mitigated the security concerns and attempted to grant a contingent clearance. The Board affirmed the Judge's decision, finding it sustainable based on the evidence presented.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowMark Harvey granted the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the Government (Department Counsel)Rejected
Department Counsel argued that the Judge's conclusion that Applicant had mitigated the security concerns was erroneous.
Decision arbitrary, capricious, or contrary to law, raised by the Government (Department Counsel)Rejected
Department Counsel contended that the Judge attempted to grant a contingent security clearance.

Why the Board ruled this way

The Board affirmed the Judge's decision, finding that the favorable conclusions regarding the Applicant's financial situation were sustainable despite the Department Counsel's arguments.

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)
Jeffrey D. Billett
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: No authority for a conditional or contingent clearance. Favorable decision affirmed. CASENO: 08-07540.a1 DATE: 01/08/2010 DATE: January 8, 2010 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-07540

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Nichole Noel, Esq., Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On April 9, 2009, 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 October 5, 2009, after the hearing, Administrative Judge Mark Harvey granted Applicant’s request for a security clearance. Department Counsel appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issues on appeal: whether the Judge’s conclusion that Applicant had mitigated the security concerns in his case was erroneous and whether the Judge attempted impermissibly to grant a contingent security clearance. Consistent with the discussion below, we affirm the decision of the Judge. Department Counsel correctly points out that this record does not support the Judge’s application of FCMC 20(b), given that Applicant’s unemployment and underemployment were a consequence of his own decisions and, therefore, not “largely beyond his control.” Still, in the Judge’s unchallenged whole-person analysis, he reached favorable conclusions regarding (1) Applicant’s financial counseling; (2) Applicant’s payment of one of the four SOR debts and one large non-SOR debt; (3) Applicant’s plan for paying his remaining debts; and (4) Applicant’s (and his spouse’s) full employment and ability to pay off their debts. Under the circumstances of this case, the decision is sustainable. Department Counsel argues that, in a footnote to the decision, the Judge attempted to grant Applicant a security clearance contingent on future monitoring of his financial condition. Department Counsel correctly states that DOHA has no authority to attach conditions to an applicant’s security clearance, and the footnote in question explicitly acknowledges that prohibition. See, e.g., ISCR Case No. 99-0109 at 2 (App. Bd. Mar. 1, 2000). Despite that, to the extent that a reasonable person might interpret the footnote as an effort to grant a contingent clearance, it can have no such effect as a matter of law.

ORDER

The Judge’s favorable security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board