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ISCR Case 08-08649.a1 — CASE

ISCR Case 08-08649.a1granted

Case Headnote

ISCR Case No. 08-08649.a1

May 28, 2010· Hon. Jeffrey D. Billett· appeal

Summary

This case concerns an applicant who, representing himself, sought a security clearance under Guideline F (Financial Considerations) after an initial denial. The applicant had accumulated numerous debts, including a significant obligation related to Child Protective Services.

By the time of the hearing, most of these debts had been paid off, and the applicant was current on all remaining obligations, including the Child Protective Services debt. The Administrative Judge found no evidence that the applicant had improperly received Child Protective Services payments.

Applying a whole-person analysis, the Administrative Judge determined that the mitigating conditions outweighed the disqualifying conditions. The Appeal Board affirmed this decision, finding substantial evidence to support the favorable outcome. Consequently, the security clearance was GRANTED.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21(a)appliedThe Behavior Was Not Recent
AG ¶ 21(b)appliedThe Conditions That Resulted in the Financial Problems Were Largely Resolved
AG ¶ 21(c)appliedThe Applicant Has a Good Track Record of Repaying Debts

Key Rule Quoted

“A Judge is required to resolve all doubt in favor of national security.”
— Directive ¶ E2.2(b)

Procedural Posture

SOR issuedMay 28, 2009
Answer filed—
Hearing heldMar 4, 2010
Decision dateMay 28, 2010

Cite For

Substantial Evidence Supporting Favorable Whole-person Analysis
Mitigating Conditions Under Guideline F
Resolution of Doubt in Favor of National Security

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 brought by Department Counsel after the Administrative Judge granted the Applicant a security clearance despite financial concerns under Guideline F. The Board affirmed the Judge's decision, finding no harmful errors in the Judge's findings or analysis.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowWilford H. Ross — 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 certain findings of fact were not supported by substantial evidence.
Mitigation wrongly applied / not applied — raised by the Government (Department Counsel)Rejected
Department Counsel contended that the Judge erred in his application of the Guideline F mitigating conditions.
Whole-person analysis — raised by the Government (Department Counsel)Rejected
Department Counsel claimed that the Judge's whole-person analysis was in error.
Legal error — raised by the Government (Department Counsel)Rejected
Department Counsel argued that the Judge erred by failing to amend the SOR to conform to the evidence.

Why the Board ruled this way

The Board found that the Judge's material findings were supported by substantial evidence and that the Judge did not err in his application of the mitigating conditions or in his whole-person analysis.

Standard of review applied

Substantial-evidence reviewNo de-novo re-decisionNo new evidence on appealProcedural compliance

Appeal Board panel

Jeffrey D. Billett
Jean E. Smallin
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: The Judge’s material findings are supported by substantial evidence. Favorable decision affirmed. CASENO: 08-08649.a1 DATE: 05/28/2010 DATE: May 28, 2010 In Re: -----

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-08649

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Alison O’Connell, Esq., Department Counsel FOR APPLICANT Pro se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On May 28, 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 March 4, 2010, after the hearing, Administrative Judge Wilford H. Ross 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 certain of the Judge’s findings of fact were supported by substantial record evidence; whether the Judge erred in his application of the Guideline F mitigating conditions; whether the Judge’s whole-person analysis was in error; and whether the Judge erred by failing to amend the SOR to conform to the evidence adduced at the hearing. Finding no error, we affirm. The Judge found that Applicant had numerous debts which had, for the most part, been paid off at the time of the hearing. These debts included several tax liens filed against Applicant by both state and federal authorities. One large debt, approximately $106,000, had not been satisfied. It was for money Applicant received from Child Protective Services (CPS) on behalf of certain of his minor children. This debt was, at the close of the record, being paid off pursuant to a court order. The Judge found that Applicant was current on this debt and that there was no basis in the record to believe that Applicant had received the CPS payments improperly. Applicant has stable employment and is current on all his debts. Although we acknowledge that there are ambiguities in the record concerning the circumstances of Applicant’s debt to CPS, after examining the Judge’s material findings of security concern we conclude that they are supported by substantial record evidence. See, e.g., ISCR Case No. 08-07528 at 2 (App. Bd. Dec. 29, 2009); ISCR Case No. 06-21025 at 2 (App. Bd. Oct. 9, 2007). Department Counsel argues that we should remand the case to the Judge with instructions to amend the SOR in order to address concerns that Applicant received the CPS funds illegally. A Judge is required to resolve all doubt in favor of national security. Directive ¶ E2.2(b). In an appropriate case, this might entail amending the SOR to conform to the evidence adduced at a hearing. See ISCR Case 08-02404 at 5 (App. Bd. Jun. 5, 2009); Directive ¶ E3.1.17. A Judge’s decision regarding amending a SOR is reviewed for abuse of discretion. ISCR Case No. 06-19544 at 3 (App. Bd. May 28, 2008). In the case under consideration here, the Judge made a sustainable finding that the evidence was not sufficient to raise an issue of illegality underlying Applicant’s receipt of CPS funds. Accordingly, we conclude that he did not err in failing to amend the SOR. We have examined the Judge’s decision in light of the totality of the record evidence. We conclude that the Judge’s sustainable findings, summarized above, are sufficient to support a favorable whole-person analysis. Accordingly, we conclude that the Judge’s decision is sustainable. “The Board need not agree with a Judge’s decision in order to find it sustainable.” ISCR Case No. 08-06856 at 2 (App. Bd. Jan. 21, 2010). In light of this conclusion, we need not address the remaining issue concerning the Judge’s analysis of the mitigating conditions.

ORDER

The Judge’s favorable security clearance decision is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, 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