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ISCR Case 08-09362.a1 — CASE

ISCR Case 08-09362.a1denied

Case Headnote

ISCR Case No. 08-09362.a1

Feb 19, 2010· Hon. Jeffrey D. Billett· appeal

Summary

A Department of Defense civilian employee was denied a security clearance under Guideline F, Financial Considerations, due to significant and unresolved financial difficulties. The primary concern stemmed from numerous outstanding and overdue consumer credit card debts, which constituted the majority of the applicant's financial obligations, rather than medical bills.

Despite the applicant presenting mitigating circumstances, the judge determined there was insufficient evidence to demonstrate a resolution of these debts. The applicant's overall financial situation did not indicate a stable economic outlook or a clear path to resolving the outstanding obligations.

Consequently, the disqualifying conditions outlined in Adjudicative Guideline Paragraph 20 outweighed the mitigating conditions cited from Adjudicative Guideline Paragraph 21(a), (b), (c), and (d). The security clearance was therefore denied.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21(a)rejectedThe Behavior Was Not RecentThe judge found that the applicant's debts were largely unresolved.
AG ¶ 21(b)rejectedThe Conditions That Resulted in the Behavior Were Beyond the Person's ControlThe judge concluded that the applicant did not sufficiently attribute her financial difficulties to her husband's unemployment.
AG ¶ 21(c)rejectedThe Person Has Received or Is Receiving Counseling for the ProblemThe judge found that the presence of some mitigating evidence did not outweigh the unfavorable evidence.
AG ¶ 21(d)rejectedThe Person Has Initiated a Good-faith Effort to Repay Overdue Creditors or Otherwise Resolve DebtsThe judge determined that the applicant's financial profile did not indicate a meaningful resolution of her debts.

Key Rule Quoted

“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. 518, 528 (1988)

Procedural Posture

SOR issuedMar 24, 2009
Answer filed—
Hearing heldNov 12, 2009
Decision dateFeb 19, 2010

Cite For

Denial of Security Clearance Based on Unresolved Financial Issues Under Guideline F
Insufficient Mitigating Circumstances to Outweigh Financial Disqualifications
The Importance of a Stable Economic Outlook in Security Clearance Determinations

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 an applicant who was denied a security clearance due to financial difficulties under Guideline F. The applicant argued that the Judge ignored evidence of debt repayment and that the decision was arbitrary. The Board affirmed the Judge's decision, finding that the evidence was properly weighed and the decision was not arbitrary or capricious.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMartin H. Mogul — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge ignored evidence of her debt repayment efforts and financial counseling.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge properly weighed the evidence and articulated a satisfactory explanation for the decision, concluding that the unfavorable security clearance decision was sustainable based on the applicant's unresolved debts and financial situation.

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
Jeffrey D. Billett
William S. Fields

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: According to the Directive, the DOHA security clearance process is not normally terminated once a hearing has commenced. Adverse decision affirmed CASENO: 08-09362.a1 DATE: 02/19/2010 DATE: February 19, 2010 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-09362

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 security clearance. On March 24, 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 November 12, 2009, after the hearing, Administrative Judge Martin H. Mogul denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issues on appeal: (1) whether the Judge considered all the record evidence; and (2) whether the Judge’s decision is arbitrary, capricious, or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable decision. The Judge found that Applicant has experienced financial difficulties as evidenced by numerous outstanding and overdue consumer credit card and medical debts. Applicant testified that the majority of her debts are the result of medical bills that her family has accrued over the years, including a medical condition of her husband that left him unemployed for a time. Notwithstanding Applicant’s assertions, the Judge found that the majority of the debts listed on the SOR were for credit card debt rather than medical bills. Additionally, the Judge found that Applicant does not attribute most of her financial difficulties to the fact of her husband’s unemployment. The Judge concluded that there was little evidence introduced to establish that Applicant has resolved most of the overdue debts, and a great deal of her debt is from overuse of credit cards. Because of this and Applicant’s lack of a stable economic outlook, the Judge resolved Guideline F against her. Applicant argues that she provided evidence that she had made payments toward her debt and that she and her husband were engaged in financial counseling, and this evidence was ignored and not taken into consideration. There is a rebuttable presumption that a Judge has considered all the record evidence unless he or she indicates otherwise. That presumption is not overcome here. A review of the evidence, including a post-hearing submission proffered by Applicant, reveals that the Judge specifically references Applicant’s efforts at debt repayment and her attempts to obtain debt counseling. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. 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. See, e.g., ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007). 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., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). In this case, the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. He discussed the applicability of Guideline F mitigating conditions and cogently explained why there was insufficient mitigation to overcome the government’s security concerns, stressing the facts that Applicant’s debts are largely unresolved and her current financial profile does not suggest that she is in a position to meaningfully resolve her overdue indebtedness. Government Exhibit 1. In her brief, Applicant states that she is a DoD civilian employee and was formerly a government contractor. Applicant states that her current job requires only a confidential clearance and does not understand why she was processed for a secret clearance. The level of clearance currently held, or the level of clearance applied for do not affect the Judge’s analysis or the Board’s review. Directive ¶ 3.2 makes no distinction concerning basic clearance levels in its procedures for deciding whether access to classified information is clearly in the national interest. See ISCR Case No. 05-11366 at 3 (App. Bd. Jan. 12, 2007). Applicant states that her case should have been seen under different circumstances due to her federal contractor employment status. Applicant fails to state with sufficient specificity how the fact of her employment status established error in the Judge’s analysis. To the extent that Applicant may be raising a jurisdictional issue, it is not dispositive in this case. There is no record evidence that suggests that Applicant was anything other than a contractor employee at the commencement of the security clearance application process or that her status changed prior to the hearing. According to the Directive, ¶ 4.4, the DOHA security clearance adjudication process is not normally terminated once a hearing has commenced. The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for his 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)). “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. 518, 528 (1988). Therefore, the Judge’s ultimate unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board