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ISCR Case 09-03616.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date3/25/2011
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 09-03616.h1) →
Participants
Applicant Representation: Pro Se
Judge: Jean E. Smallin, James E. Moody, William S. Fields
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline BForeign Influence · Against Applicant
- Guideline EPersonal Conduct · Against Applicant
- Guideline FFinancial Considerations · Against Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
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ISCR Case 09-03616.a1denied

Case Headnote

ISCR Case No. 09-03616.a1

Mar 25, 2011· Hon. Jean E. Smallin· appeal

Summary

A naturalized U.S. citizen, originally from Afghanistan, was denied a security clearance due to concerns under Guideline B (Foreign Influence), Guideline E (Personal Conduct), and Guideline F (Financial Considerations). The applicant had significant financial issues, including a $6,000 delinquency on a second mortgage.

Additionally, the applicant maintained familial ties in Afghanistan and sent money to relatives there, which raised foreign influence concerns. These factors collectively led to the initial denial of the security clearance.

The Appeal Board subsequently affirmed the denial, concluding that the judge's decision was supported by substantial evidence and that no harmful error occurred during the process.

Conditions Referenced

Disqualifying

AG BraisedForeign Influence
AG EraisedPersonal Conduct
AG FraisedFinancial Considerations

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 issuedJun 1, 2010
Answer filed—
Hearing heldJan 11, 2011
Decision dateMar 25, 2011

Cite For

Security Concerns Under Guideline B Regarding Foreign Influence
Financial Considerations Under Guideline F Due to Delinquent Debts
Personal Conduct Issues Under Guideline E Related to Employment Termination

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 concerns under Guidelines B, E, and F. The applicant argued that the Judge's findings were erroneous and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error that would affect the outcome.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowShari Dam — denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline EGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contends that the Judge made errors in her findings.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argues that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the adverse decision was not arbitrary or capricious. The Board also noted that no harmful error was identified that would change the outcome of the case.

Standard of review applied

Substantial-evidence reviewNo new evidence on appealNo de-novo re-decisionHarmful-error gatekeeper

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 B; Guideline E; Guideline F DIGEST: The Judge’s findings are consistent with Applicant’s admissions in response to the SOR. CASENO: 09-03616.a1 DATE: 03/25/2011 DATE: March 25, 2011 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-03616

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 June 1, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence), 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 January 11, 2011, after the hearing, Administrative Judge Shari Dam 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 certain of the Judge’s findings of fact were supported by substantial record evidence and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. Consistent with the following discussion, we affirm the decision of the Judge. Facts The Judge made the following pertinent findings of fact: Applicant was born in Afghanistan and speaks two Afghan dialects. He experienced a period of political imprisonment after which he left Afghanistan, eventually settling in the U.S. He became a naturalized U.S. citizen in the early 1990s. Applicant has numerous siblings, all born in Afghanistan. Three of them are both citizens and residents of Afghanistan. One is a citizen of a European country who resides in Afghanistan. He has sent this sibling $200 every couple of months to assist in family support. For the past two or three years, he has sent $600 to one of his cousins. He and his siblings inherited an interest in the family home in Afghanistan. One of the siblings lives in it. He has no other financial interests in that country and has expressed no interest in obtaining his $10,000 share of the inheritance. Applicant has a primary and secondary mortgage on his home in the U.S. He fell behind in his payments due to loss of employment. Although he has finalized a loan modification for the first mortgage, he is delinquent by $6,000 for the second. The lender has placed a lien on the property. This debt is the basis for the sole allegation under Guideline F.

During previous employment, Applicant was deployed to Afghanistan. This was his first visit to the country since leaving it twenty years before. While there, he left base to return a car that he had rented for another colleague who had returned to the U.S. Upon returning to base, his employment was immediately terminated, because Applicant did not receive prior authorization for the trip. Applicant was aware of the requirement for authorization, but he did not take it seriously.

DISCUSSION

Applicant contends that the Judge made errors in her findings. For example, he states that he has no firm obligation to send money to his Afghani relatives and that some of his siblings are step-siblings. The Judge’s findings are consistent with Applicant’s admissions to the SOR. Moreover, after reviewing the record, we conclude that the Judge’s material findings are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. Applicant has not identified any harmful error likely to change the outcome of the case. Considering the record evidence as a whole, the Judge’s material findings of security concern are sustainable. See, e.g., ISCR Case No. 08-11735 at 2-3 (App. Bd. Sep. 21, 2010). In support of his appeal, Applicant has submitted new evidence, in the form of a document that purports to show forgiveness of the debt alleged in the SOR. We cannot consider new evidence on appeal. See Directive ¶ E3.1.29. (“No new evidence shall be received or considered by the Appeal Board”). See also ISCR Case No. 08-05379 at 2 (App. Bd. Sep. 15, 2010). However, even if we did, under the facts of this case the decision would remain the same. To the extent that the offered document shows that the Judge’s findings contain an error, the error is harmless. The record supports a conclusion 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