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ISCR Case 09-03233.a1 — CASE

ISCR Case 09-03233.a1denied

Case Headnote

ISCR Case No. 09-03233.a1

Aug 12, 2010· Hon. Jeffrey D. Billett· appeal

Summary

The applicant, representing himself, was denied a security clearance primarily due to concerns under Guideline F (Financial Considerations) and Guideline J (Criminal Conduct). He had accumulated over $75,000 in unpaid debts, which demonstrated a significant lack of financial responsibility. This issue was identified as a disqualifying condition under AG ¶ 20, with no mitigating conditions applied to resolve the financial concerns.

Additionally, the applicant's history of molesting his daughter raised serious trustworthiness concerns. While initial findings regarding this past sexual misconduct were favorable, the appeal board reversed them due to inconsistencies in his statements. These inconsistent statements undermined his credibility, leading to the application of disqualifying condition AG ¶ 30, which was not sufficiently mitigated by AG ¶ 32.

Ultimately, the appeal board affirmed the denial of the security clearance. The decision was based on the applicant's substantial unpaid debts and his lack of candor regarding past criminal conduct, both of which demonstrated a lack of judgment, reliability, and trustworthiness.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 30raisedCriminal Conduct

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe applicant failed to provide sufficient evidence of financial rehabilitation.
AG ¶ 32rejectedCriminal ConductThe judge's favorable findings were reversed due to inconsistencies in the applicant's statements.

Key Rule Quoted

“Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance.”
— Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)

Procedural Posture

SOR issuedSep 9, 2009
Answer filedDec 16, 2009Applicant submitted additional information.
Hearing held—Decision made on the written record.
Decision dateAug 12, 2010

Cite For

Financial Responsibility Under Guideline F
Credibility Issues Related to Past Criminal Conduct Under Guideline J
The Presumption Against Granting Security Clearance When Concerns Arise.

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 and criminal conduct. The applicant argued that the Judge erred in applying mitigating conditions for financial issues and that the decision was arbitrary and capricious. The Department Counsel cross-appealed regarding the Judge's favorable findings on criminal conduct. The Board affirmed the denial under Guideline F and reversed the favorable findings under Guideline J, resulting in an overall affirmation of the adverse decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDarlene D. Lokey Anderson — denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge's application of the Guideline F mitigating conditions was erroneous.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.
Judge mis-weighed or ignored evidence — raised by the Government (Department Counsel)Error sustained
Department Counsel contended that the Judge's application of the Guideline J mitigating conditions was erroneous.

Why the Board ruled this way

The Board affirmed the Judge's decision under Guideline F due to substantial evidence supporting the adverse findings regarding the applicant's financial issues, while reversing the favorable findings under Guideline J due to the Judge's failure to adequately consider significant contrary evidence and inconsistencies in the applicant's statements.

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 callsReduced credibility deference (written record)

Appeal Board panel

Jeffrey D. Billett
Jean E. Smallin
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; Guideline J DIGEST: The Board cannot consider Applicant’s new evidence regarding his finances on appeal. Department Counsel’s cross-appeal is persuasive that the Judge’s favorable conclusions regarding Applicant’s history of molesting two girls are not sustainable on this record. Adverse decision affirmed. CASENO: 09-03233.a1 DATE: 08/12/2010 DATE: August 12, 2010 In Re: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-03233

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Alison O’Connell,Esq., Department Counsel FOR APPLICANT Pro se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On September 9, 2009, DOHA issued a statement of reasons (SOR) advising Applicant The File of Relevant Material (FORM) was submitted to Applicant on November 13, 2009. Applicant submitted additional information in a reply dated December 16, 2009. The FORM and Applicant’s reply were the basis of the Judge’s decision. Applicant’s bankruptcy discharge did not occur until March 23, 2010, well after the close of the record in this case. of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On April 23, 2010, after considering the record, Administrative Judge Darlene D. Lokey Anderson denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department cross-appealed pursuant to Directive ¶ E3.1.28. Applicant raised the following issues on appeal: whether the Judge’s application of the Guideline F mitigating conditions was erroneous and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. Department Counsel raised the following issue on cross-appeal: whether the Judge’s application of the Guideline J mitigating conditions was erroneous. For reasons set forth below, we affirm the Judge’s decision under Guideline F and reverse that part of the decision which concerns Guideline J. Applicant’s Appeal under Guideline F The Judge made the following pertinent findings of fact: Applicant is in debt to seven different creditors in a total amount of over $75,000. All of the debts are unpaid. Applicant stated that he intended to file for Chapter 7 bankruptcy protection. He experienced two periods of unemployment, once during May to October 2002 and an earlier instance during November 1999 to June 2000. However, he has been steadily employed since October 2002. His SOR debts did not become delinquent until 2003 or later. In the Analysis portion of the decision, the Judge stated: Based upon the large amount of debt owed by the Applicant, his failure to provide sufficient documentary evidence as to why he became indebted in the first place, what he has done to resolve it, and how he has changed or reformed his past spending habits, the Applicant has failed to provide sufficient evidence of financial rehabilitation. Decision at 7. Applicant contends that he successfully mitigated the security concerns raised by his financial problems. He has submitted a document showing that he had, in fact, been discharged in Chapter 7 bankruptcy before the Judge issued her decision. However, we cannot consider this document. See Directive ¶ E3.1.29. (“No new evidence shall be received or considered by the Appeal Board”). See also ISCR Case No. 08-06875 at 2 (App. Bd. Oct. 29, 2009). We have considered Applicant’s brief on appeal. We note the Judge’s conclusion that there is a paucity of record evidence concerning (1) the circumstances of his indebtedness; (2) his efforts to address his delinquent debts; and (3) his efforts to reform his past spending habits. The Judge’s decision as to Applicant’s Guideline F security concerns, viewed in light of the record as a whole, is sustainable. Department Counsel’s Cross-Appeal under Guideline J The Judge made the following pertinent findings of fact: In June 1984, Applicant molested his then 10-year-old daughter (Daughter). Applicant made inconsistent statements about this incident. In 2009, during a security clearance interview, he stated that Daughter touched and masturbated him “without provocation.” Decision at 3. He could not explain why she did that or why he allowed her to do it. He stated that she did it again on two further occasions. By contrast, in 2003 he stated that he had molested a twelve-year-old girl by touching her inappropriately. In this earlier statement, he did not disclose that the victim was his daughter and that she had been ten years old rather than twelve. In resolving this security concern in Applicant’s favor, the Judge stated that the misconduct had occurred in the distant past and that Applicant’s sex offender registration makes knowledge of his misconduct publicly available, thereby diminishing any potential for coercion, exploitation, or duress. Accordingly, she extended favorable application to Directive, Enclosure 2 ¶ 32(a): [S]o much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment[.]

DISCUSSION

Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents th evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. “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). In deciding whether the Judge's rulings or conclusions are erroneous, the Board will review the Judge's decision to determine whether: it does not examine relevant evidence; it fails to articulate a satisfactory explanation for its conclusions, including a rational connection between the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference of opinion. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). Department Counsel argues that the Judge’s analysis under Guideline J does not take into account significant contrary record evidence. She contends, for example, that Applicant’s requirement to give public notice by means of the sex offender registry implies a real possibility of Applicant decided to have his case decided on the written record. As a result, the Judge did not have an opportunity to question Applicant and observe his demeanor. In such circumstances, the Judge’s favorable credibility determination is not entitled to the same deference on appeal that it would receive had it been made in the context of a hearing. See, e.g., ISCR Case No. 04-04302 at 3-4 (App. Bd. Jun. 30, 2005). recidivism in the state’s view, which is inconsistent with the Judge’s conclusion that his offense is not likely to recur. Furthermore, she argues that the Judge did not consider the extent to which Applicant’s offense, even though it occurred long ago, impugns his trustworthiness and good judgment. These arguments are persuasive. We also note the Judge’s findings and the record evidence concerning Applicant’s inconsistent statements. While the Judge acknowledged that Applicant’s recollections “were not identical” (Decision at 6), she did not discuss the extent to which the inconsistencies undermined Applicant’s credibility. Neither did she discuss the significance of Applicant’s 2009 claim that he had no explanation as to why his ten-year-old daughter masturbated him on three separate occasions. Accordingly, the Judge failed “to consider an important aspect of the case” (ISCR Case No. 03- 22861, supra), thereby undercutting her conclusion that Applicant has met his burden of persuasion as to mitigation under the Egan standard. We conclude that the Judge’s favorable decision under Guideline J is not sustainable. Accordingly, we affirm the Judge’s adverse findings under Guideline F and reverse her favorable findings under Guideline J.

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jeffery D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board