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ISCR Case 09-03427.a1 — CASE

ISCR Case 09-03427.a1denied

Case Headnote

ISCR Case No. 09-03427.a1

Feb 19, 2010· Hon. Jean E. Smallin· appeal

Summary

A senior avionics technician and former U.S. Marine was denied a security clearance under Guideline F, Financial Considerations. The denial stemmed from two unmitigated delinquent debts totaling $17,654, which were identified as disqualifying conditions under F.3.

The applicant failed to satisfactorily resolve these financial concerns. Consequently, the Appeal Board affirmed the initial denial, finding no error in the Judge's decision.

The Board concluded that the applicant's unmitigated financial issues were inconsistent with national security interests, leading to the final denial of the security clearance.

Conditions Referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy 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 issuedJul 10, 2009
Answer filed—
Hearing heldNov 23, 2009
Decision dateFeb 19, 2010

Cite For

Affirmation of Adverse Decision Based on Financial Considerations Under Guideline F
Failure to Mitigate Delinquent Debts
Standard for Granting Security Clearance Related to National Security Interests

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 decision was arbitrary and capricious. The Board reviewed the case and affirmed the denial, finding no harmful error in the Judge's decision.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRita C. O’Brien — 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 adverse security clearance decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's decision, affirming that the Judge articulated a satisfactory explanation for the adverse decision and that it was sustainable on 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

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: The prior Appeal Board decision cited by Applicant is factually distinguishable from this case. Adverse decision affirmed. CASENO: 09-03427.a1 DATE: 02/19/2010 DATE: February 19, 2010 In Re: ----

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-03427

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 July 10, 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 23, 2009, after the hearing, Administrative Judge Rita C. O’Brien 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 adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge found that Applicant is employed as a senior avionics technician for a Defense contractor. He served in the U.S. Marine Corps from 1983 to 1987. Married, he has two stepdaughters. He also has two sons from a previous marriage. Applicant’s SOR listed two delinquent debts. The first, $6,412, is owed on a retail store credit card. Applicant and his then-girlfriend used the card to purchase a computer. When the couple broke up, the girlfriend kept the computer. The debt became delinquent, and the store sought payment from Applicant, as he was the primary account holder for the card. The store obtained a judgment against Applicant for the balance of the debt, which was unpaid at the close of the record. In 2003 or 2004 Applicant purchased a motorcycle. He had reconciled with his first wife, but, soon after the purchase, he moved out of the house where they were living. He had not driven the motorcycle and had made only one payment on it. He proposed that the seller take back the motorcycle, with Applicant paying the depreciation as compensation. However, the seller did not accept this proposal, instead repossessing the vehicle and selling it, charging Applicant with the $11,242 deficiency. Applicant has refused to pay that amount, believing that the seller, by transporting the vehicle to another state for the sale, did not reasonably mitigate the damages. This debt was unpaid at the close of the record. Applicant has approximately $1,000 left over each month after expenses. At the close of the record he had about $500 in savings and $8,300 in his checking account. In support of his appeal, Applicant has cited a prior decision by the Board, which, he contends, supports his case for mitigation. We have considered this case, concluding that it is factually distinguishable from Applicant’s. He also cites to cases by the Hearing Office in support of his appeal. The Board gives due consideration to these cases as well. However, each case “must be decided upon its own merits.” Directive ¶ E2.2.3. Hearing Office decisions are binding neither on other Hearing Office Judges nor on the Board. See ISCR Case No. 06-24121 at 2 (App. Bd. Feb. 5, 2008). 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: 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