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ISCR Case 09-01387.a1 — CASE

ISCR Case 09-01387.a1denied

Case Headnote

ISCR Case No. 09-01387.a1

Apr 13, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

An aerospace engineer was denied a security clearance under Guideline F, Financial Considerations, due to over $300,000 in delinquent debts. The applicant admitted to these multiple outstanding debts, which were identified as a disqualifying condition (F.3).

While the applicant presented character references and evidence of personal challenges, the judge determined that these did not sufficiently mitigate the security concerns. Specifically, the judge found that the applicant had not resolved any of the delinquent debts, leading to the conclusion that mitigating conditions (F.2, F.3) were not adequately met.

Consequently, the security clearance denial was affirmed on appeal, as the applicant failed to demonstrate sufficient mitigation of the financial issues.

Conditions Referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts

Mitigating

F.2rejectedThe Conditions That Resulted in the Financial Problems Were Largely Beyond the Person's ControlThe judge found that the applicant's previous bankruptcy and the size of the delinquent debt outweighed any mitigating factors.
F.3rejectedThe Individual Has Made Good Faith Efforts to Repay Overdue Creditors or Has Otherwise Resolved DebtsThe applicant did not demonstrate a track record of debt repayment.

Key Rule Quoted

“An applicant’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 that the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law.”
— ISCR Case No. 06-23384 at 3 (App. Bd. Nov. 23, 2007)

Procedural Posture

SOR issuedJul 31, 2009
Answer filed—
Hearing heldFeb 3, 2010
Decision dateApr 13, 2010

Cite For

Denial of Security Clearance Based on Significant Financial Issues Under Guideline F
Insufficient Mitigation of Financial Concerns Despite Personal Hardships
Affirmation of Judge's Discretion in Weighing Evidence and Making 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 a denial of a security clearance based on financial considerations under Guideline F. The Applicant argued that the Judge's decision was arbitrary and sought to mitigate the security concerns. The Board affirmed the Judge's decision, finding no error in the ruling.

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

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's decision and affirmed the denial of the security clearance. The Judge's findings were supported by substantial evidence, and the Applicant's arguments did not demonstrate harmful error.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan — Chair
William S. Fields
Jean E. Smallin

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: A party’s ability to argue for a different interpretation of the evidence is not sufficient to demonstrate error by the Judge. Adverse decision affirmed. CASENO: 09-01387.a1 DATE: 04/13/2010 DATE: April 13, 2010 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-01387

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 July 31, 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 February 3, 2010, after the hearing, Administrative Judge Martin H. Mogul denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. Specifically, Applicant argues that the security concerns raised by his financial situation should be completely mitigated. Finding no error, we affirm the Judge’s decision. The Judge made the following relevant findings of fact: Applicant is an aerospace engineer and is married with two children. In his response to the SOR allegations, Applicant admitted five of the seven alleged delinquent debts, and during the hearing admitted the other two. Applicant provided testimony regarding the origin of his financial difficulties. Applicant’s current delinquent debts exceed $300,000 in total. Applicant served three years in the U.S. Navy and received an honorable discharge. He had debt discharged in a Chapter 7 bankruptcy in 2000 after his parents were killed in an accident and his first wife left him. Applicant also provided positive character letters attesting to his good character and patriotism. In his decision, the Judge focused on Applicant’s failure to resolve any of his delinquent debt.

In his appeal brief, Applicant states that he did not hire an attorney to represent him at the hearing because of the expense involved. Applicant indicates that he wishes to restate his case, because he did not fully understand the Directive, and therefore the answers he provided at the hearing were not as complete as they should have been. Applicant’s appeal brief also contains evidence of steps he has taken since the hearing to improve his financial situation. At the hearing, Applicant testified that he was a college graduate; he also stated that he had received a copy of the Directive and had read and understood it. Tr. at 5. The Judge found that Applicant was able to represent himself. Id. During the hearing, Applicant never indicated that he did not understand the Directive or the proceedings. Moreover, the Judge kept the record open after the hearing, and Applicant submitted further evidence. Applicant had a full opportunity to present his case. To the extent Applicant seeks relief from the consequences of representing himself, his claim lacks merit. See, e.g.,ISCR Case No. 03-04779 at 3 (App. Bd. Jul. 20, 2005). On appeal, the Board does not review a case de novo. Rather, the Board addresses the material issues raised by the parties to determine whether there is factual or legal error. There is no presumption of error below, and the appealing party must raise claims of error with specificity and identify how the Judge committed factual or legal error. Directive ¶ E3.1.32. See also ISCR Case No. 03-10004 at 2 (App. Bd. Jan. 27, 2006). Apart from his argument regarding mitigation, which will be addressed below, Applicant has not alleged error on the part of the Judge. The Board cannot consider the information Applicant submitted with his appeal concerning steps he has taken since the hearing to improve his financial situation, since it constitutes new evidence. Directive ¶ E3.1.29. Applicant argues that the security concerns raised by his financial situation should be completely mitigated. The application of disqualifying and mitigating conditions and whole-person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. Thus, the presence of some mitigating evidence does not alone compel the Judge to make a Although the Judge did not discuss the role of the economic downturn in Applicant’s situation, given the totality of facts and circumstances (including the previous bankruptcy, the size of the delinquent debt, and the lack of a track record of debt repayment), we cannot conclude that the Judge’s omission was harmful. favorable security clearance determination. 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. An applicant’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 that 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. 06-23384 at 3 (App. Bd. Nov. 23, 2007).

ORDER

The Judge’s decision denying Applicant a security clearance 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: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board