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ISCR Case 08-11645.a1 — CASE

ISCR Case 08-11645.a1denied

Case Headnote

ISCR Case No. 08-11645.a1

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

Summary

An engineer with a long tenure at a defense contractor was denied a security clearance due to concerns under Guideline F (Financial Considerations) and Guideline E (Personal Conduct). The applicant's financial history included four bankruptcy filings since 1984: two Chapter 7 discharges and two dismissed Chapter 13 filings.

At the time of the decision, the applicant had two unresolved delinquent debts totaling over $15,000. Additionally, the misuse of a company credit card contributed to the overall concerns regarding his financial responsibility.

While some mitigating conditions were considered, the judges ultimately concluded that the applicant failed to demonstrate the necessary financial responsibility. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe judge found that the applicant's financial problems were ongoing and not mitigated by the passage of time.
AG ¶ 22rejectedFinancial ConsiderationsThe judge concluded that the applicant failed to demonstrate responsible behavior regarding his 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 issuedMay 29, 2009
Answer filed—
Hearing heldFeb 22, 2010
Decision dateJun 8, 2010

Cite For

Denial of Security Clearance Due to Financial Irresponsibility Under Guideline F
Impact of Multiple Bankruptcies on Security Clearance Eligibility
Whole-person Analysis in the Context of Financial Considerations

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 seeking a security clearance who was denied due to concerns under Guideline E and Guideline F. The applicant argued that the Judge misapplied mitigating conditions and failed to properly consider whole-person factors. The Board affirmed the Judge's decision, finding no harmful error in the analysis.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline F

What the Board reviewed

Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant contended that the Judge erred in his application of the Guideline F mitigating conditions.
Whole-person analysis — raised by the applicantRejected
Applicant argued that the Judge did not properly apply the whole-person factors.

Why the Board ruled this way

The Board found no error in the Judge's application of the mitigating conditions or the whole-person analysis, affirming the adverse decision based on substantial evidence in the record.

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

Jeffrey D. Billett
William S. Fields
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 E; Guideline F DIGEST: The fact that the Judge did not explicitly discuss Applicant’s having paid off certain non-SOR debts does not undermine the Judge’s whole-person analysis. Applicant has provided no reason to believe that the Judge mis-weighed the record evidence. Adverse decision affirmed. CASENO: 08-11645.a1 DATE: 06/08/2010 DATE: June 8, 2010 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-11645

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 May 29, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline E (Personal Conduct) and Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 22, 2010, after the hearing, Administrative Judge Edward W. Loughran denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge erred in his application The Judge’s favorable findings under Guideline E are not at issue in this appeal. See Directive ¶ E2.20(a): “the behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment[.]” of the pertinent mitigating conditions and whether the Judge failed properly to apply the whole- person factors. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is an engineer working for a Defense contractor. He has worked for his current employer or a predecessor company since 1978. Applicant has filed for bankruptcy four times since 1984. He was discharged twice in Chapter 7 bankruptcy, in 1985 and again in 1998. His other two filings, both under Chapter 13, were dismissed, one in 1989 and the other in 2004. The 1989 dismissal was due to non-payment, and the 2004 was voluntary. In addition to the bankruptcy filings, the Judge also found that Applicant had, at the close of the record, two delinquent debts. The first was for $14,114 owed due to the repossession of a car. Applicant arranged a settlement of this debt with the creditor, agreeing to pay monthly installments of $150 toward a final settled amount of $7,276. At the close of the record Applicant had made four payments. The second delinquent debt was in the amount of $1,180, owed to a check-cashing company. Although Applicant initially denied this debt, based on his testimony at the hearing, the Judge concluded that the debt was legitimately his and that it was still owed. Applicant was disciplined by his employer in 2008 for misusing a company credit card by making personal charges upon it in addition to charges related to company business. Applicant enjoys a good reputation for job performance, honesty, and trustworthiness. Applicant contends that the Judge erred in his application of the Guideline F mitigating conditions. For example, he argues that his latest bankruptcy filing occurred in 2003, which was several years prior to the close of the record. Therefore, he believes that his financial problems occurred long ago and should be mitigated by the passage of time. The record demonstrates, however, that while the Judge acknowledged record evidence concerning the timing of the latest bankruptcy filing, he also noted that, since that filing, Applicant acquired more delinquent debts, two significant ones remaining unpaid. Accordingly, he reasonably concluded that Applicant had failed to demonstrate that the financial problems were behind him or were unlikely to recur. The Judge also acknowledged that Applicant’s financial troubles were affected by circumstances outside his control, for example a period of unemployment, medical expenses, and Directive ¶ E2. 20(b): “the conditions that resulted in the financial problem were largely beyond the person’s control . . . and the individual acted responsibly under the circumstances[.]” The misuse of the credit card formed the basis of the two Guideline E allegations, which the Judge resolved in Applicant’s favor. However, the Judge also stated that, despite his conclusion under Guideline E, he would consider this misconduct in the context of Applicant’s financial situation, his case for mitigation, and the whole-person analysis. Decision at 8, n. 19. A Judge is not required to discuss each and every piece of record evidence in making a decision. See, e.g., ISCR Case No. 07-17673 at 2 (App. Bd. Apr. 2, 2009). a diminution in employer-provided reimbursement for travel expenses. However, the Judge noted other record evidence which was not so favorable to Applicant, for example testimony that Applicant mismanaged money, that he did not balance his checking account, that he did not live within a budget, and that he misused the company credit card. He concluded that Applicant had failed to demonstrate responsible behavior in regard to his debts. After examining the Judge’s decision in light of the record as a whole, we conclude that he did not err in denying favorable application to the Guideline F mitigating conditions. Applicant contends that the Judge did not properly apply the whole-person factors. He contends, for example, that the Judge did not consider that he had paid off debts not listed in the SOR. He also argues that the Judge failed to extend proper consideration to record evidence of his good work habits, his character, and his having held a clearance for over 30 years without incident or concern. However, a Judge is presumed to have considered all of the record evidence. See, e.g., ISCR Case No. 07-00196 at 3 (App. Bd. Feb. 20, 2009); ISCR Case No. 07-00553 at 2 (App. Bd. May 23, 2008). The Judge acknowledged that Applicant had paid off many of the debts alleged in the SOR. However, the fact that he did not explicitly discuss non-SOR debts does not undermine his unfavorable conclusion as to mitigation. Even if he had explicitly discussed these other debts,5 there is little likelihood that he would have found their resolution sufficient to outweigh evidence that Applicant continued to acquire delinquent debt despite having twice been discharged in bankruptcy, and other evidence of financial irresponsibility. Furthermore, while the Judge found that Applicant enjoyed a good reputation for character and performance of duty, Applicant has provided no reason to believe that he weighed this positive evidence in a manner that is arbitrary capricious, or contrary to law. See, e.g., ISCR Case No. 06- 21819 at 2 (App. Bd. Aug. 13, 2009). We conclude that the Judge’s whole person analysis complies with the requirements of Directive, Enclosure 2 ¶ 2, in that the Judge considered the totality of Applicant’s conduct in reaching his decision. See ISCR Case No. 08-02464 at 3 (App. Bd. Jul. 16, 2009); ISCR Case No. 05-03948 at 3-4 (App. Bd. May 21, 2007); ISCR Case No. 04-09959 at 6 (App. Bd. May 19, 2006). After reviewing the record, we conclude 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)). The Judge’s adverse decision is sustainable on this record. “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).

ORDER

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