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ISCR Case 09-00525.a1 — CASE

ISCR Case 09-00525.a1denied

Case Headnote

ISCR Case No. 09-00525.a1

Mar 23, 2010· Hon. Jean E. Smallin· appeal

Summary

A retired Navy officer and research analyst was denied a security clearance under Guideline F (Financial Considerations) due to significant delinquent debts totaling over $43,000. These debts included credit card balances and a repossessed recreational vehicle. The appeal board affirmed the denial, citing Disqualifying Condition AG ¶ 20(a).

The board determined that the applicant's financial problems were self-inflicted and had not been adequately addressed, which reflected poor judgment. Despite his honorable military service, the whole-person analysis did not sufficiently mitigate the concerns raised by his financial irresponsibility.

Consequently, the applicant's security clearance was denied, as his financial issues were deemed to pose an unacceptable risk under the established guidelines.

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedFinancial Considerations

Key Rule Quoted

“Each case must be decided upon its own merits.”
— Directive ¶ E2.2.3.

Procedural Posture

SOR issuedJun 3, 2009
Answer filed—
Hearing heldDec 31, 2009
Decision dateMar 23, 2010

Cite For

Self-inflicted Financial Issues Under Guideline F
Importance of Financial Responsibility in Security Clearance Eligibility
Whole-person Analysis in Financial Consideration Cases

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 financial considerations under Guideline F. The applicant argued that the Administrative Judge failed to consider favorable evidence and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationAttorney

Judge belowHenry Lazzaro — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge failed to consider record evidence favorable to him.
Whole-person analysis — raised by the applicantRejected
Applicant argued that the Judge's whole-person analysis was erroneous.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant claimed that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision and affirmed the adverse security clearance decision based on the evidence presented.

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

Jean E. Smallin
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 F DIGEST: Each case must be decided on its own merits. This case is distinguishable from the cases cited by Applicant. Adverse decision affirmed. CASENO: 09-00525.a1 DATE: 03/23/2010 DATE: March 23, 2010 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-00525

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Samuel Bluck, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On June 3, 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 December 31, 2009, after the hearing, Administrative Judge Henry Lazzaro 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 failed to consider record evidence favorable to Applicant; whether the Judge’s whole-person analysis was erroneous; and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is a research analyst and writer for a Defense contractor. He enlisted in the Navy. He subsequently attended college on a ROTC scholarship and served in the Navy as a commissioned officer. He retired as an 0-4, having been approved to leave the service about one year in advance of his actual retirement date. Applicant’s first marriage ended in divorce, and his ex-wife died in 2006. He remarried in 2007 and has a four-year-old stepson. After retiring from the military, Applicant experienced a period of underemployment, which affected his financial condition. Applicant has significant delinquent debt for credit cards, medical treatment, and a repossessed recreational vehicle (RV). He had intended to live in the RV following his retirement. However, after he retired, he did not make enough money to make payments on the RV, and it was repossessed. At the close of the record he owed over $27,000 for the vehicle. He also has at least four delinquent debts not listed in the SOR, the balance owed on them being approximately $16,000. He has entered into repayment plans for these debts. Applicant considered filing for bankruptcy protection, but an attorney advised him that he made too much money for Chapter 7, and he did not want to pursue Chapter 13. Applicant’s net monthly salary is approximately $4,000. He also receives a monthly payment of $2,900 in military retirement. Although he has a positive cash flow each month, he cannot account for how the remainder of his income is spent. Applicant held a security clearance while on active duty, with no incident or concern. He enjoys an excellent reputation for the quality of his character. In the Analysis portion of the decision, the Judge explicitly considered Applicant’s honorable service in the Navy and his good security record. However, he concluded that Applicant’s decision to retire from the military without first reducing his debt or obtaining adequate replacement income reflected poorly upon his judgement. “[C]onsidering the disregard he has demonstrated since retiring from the Navy for keeping his financial affairs in order and the continuing disregard he has shown for resolving the financial problems he is experiencing, I find the whole person analysis is insufficient to overcome the financial considerations concern that exists.” Decision at 7. In support of his appeal, Applicant has cited to other Appeal Board cases which he contends support his case for mitigation. We give due consideration to them. However, we conclude that they are distinguishable from Applicant’s. Unlike the prior cases, in this one the Judge reasonably explained his conclusion that Applicant’s financial problems were caused by his own actions and that he had not demonstrated sufficient attention to resolving his problems. Moreover, each case “must be decided upon its own merits.” Directive ¶ E2.2.3. Applicant contends that the Judge did not consider all the record evidence. Applicant cites to evidence that he suffered financial loss when a mobile home he owned was destroyed. He also cites testimony that he experienced some financial pressure due to his having cared for his ex-wife during her final illness. However, a Judge is presumed to have considered all the evidence in the record. 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). Applicant’s argument is not sufficient to rebut this presumption, in view of the totality of the record evidence. We conclude that the Judge’s whole-person analysis complies with the requirements of Directive ¶ E2.2.1, in that the Judge considered the totality of Applicant’s circumstances 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, 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)). 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: Jean E. Smallin Jean E. Smallin 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