ISCR Case No. 08-09058.a1

KEYWORD: Guideline F DIGEST: It is appropriate for a Judge to assign diminished weight or no weight at all to an incomplete exhibit. Adverse decision affirmed CASENO: 08-09058.a1 DATE: 12/18/2009 DATE: December 18, 2009 In Re: ------

Applicant for Public Trust Position ) ) ) ) ) ) ) ) ADP Case No. 08-09058

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Judge found in Applicant’s favor for one debt, which Applicant demonstrated was not hers. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a trustworthiness designation. On May 8, 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 30, 2009, after the hearing, Administrative Judge Carol G. Ricciardello denied Applicant’s request for a trustworthiness designation. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse trustworthiness determination is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following findings of fact: Applicant works for a federal contractor as an executive assistant. She has two children. Her husband is unemployed and has not worked since 2005. Applicant has numerous delinquent debts, totaling $13,687. Although Applicant denied certain debts and claimed that others were paid (either in full or in part), she provided no corroboration for these statements. The Judge considered pertinent mitigating conditions, but she concluded that Applicant had failed to meet her burden of persuasion. The Judge noted that, in addition to not corroborating her claims of payment, Applicant had not received financial counseling, had not provided a credible basis for disputing her debts, and had generally failed to demonstrate a track record of responsible action. Applicant cites to a credit report she submitted to the Judge. The Judge noted that that credit report was incomplete, comprising only the first four pages of a 22-page document. It is appropriate for a Judge to assign diminished weight, or no weight at all, to such an exhibit. In support of her appeal Applicant has submitted new matters not contained in the case record, which the Board cannot consider. See Directive ¶ E3.1.29. (“No new evidence shall be received or considered by the Appeal Board.”). See also ADP Case No. 08-03721 at 2 (App. Bd. Oct. 28, 2009).

After reviewing the record, the Board concludes that 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.’” 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)). In light of the entirety of the record evidence, the Judge’s adverse trustworthiness determination is sustainable.

The Judge’s adverse trustworthiness determination 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