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ISCR Case 09-04380.a1 — CASE

ISCR Case 09-04380.a1denied

Case Headnote

ISCR Case No. 09-04380.a1

Feb 18, 2010· Hon. Michael D. Hipple· appeal

Summary

This security clearance application was denied under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The applicant, representing himself, faced significant concerns primarily due to delinquent debts exceeding $170,000, which included substantial tax liabilities.

The judge determined that the applicant failed to adequately address these debts, despite being aware of the government's concerns for over a year. While the applicant cited external circumstances impacting his financial situation, the judge found that many of the financial issues predated these circumstances.

Ultimately, the applicant's failure to resolve the significant delinquent debts, as outlined in AG ¶ 20, led to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Key Rule Quoted

“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 issuedAug 5, 2009
Answer filed—
Hearing heldDec 23, 2009
Decision dateFeb 18, 2010

Cite For

Significant Delinquent Debts as a Basis for Security Clearance Denial
Failure to Address Financial Obligations Despite Awareness of Concerns
Impact of External Circumstances on Financial Condition Not Mitigating in Nature

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 findings were not supported by substantial evidence and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowClaude R. Heiny — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge's findings were not based on substantial evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse 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 based on substantial evidence and that any alleged errors were harmless. The Judge's decision was not arbitrary or capricious and was consistent with national security interests.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael D. Hipple
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: Although Applicant’s poor financial condition was affected by circumstances outside his control, the Judge reasonably concluded that Applicant had failed adequately to address his debts. The Judge’s findings are based on substantial evidence. Any error in those findings is harmless. Adverse decision affirmed. CASENO: 09-04380.a1 DATE: 02/18/2010 DATE: February 18, 2010 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-04380

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 August 5, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On December 23, 2009, after the hearing, Administrative Judge Claude R. Heiny denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The Judge’s favorable findings under Guideline E are not at issue in this appeal. Applicant raised the following issues on appeal: whether the Judge’s findings were based upon substantial record evidence and 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 had a significant amount of delinquent debt related to federal and state tax liens, repossession of a truck, child support, and a credit card. Applicant had paid off the child support by the time of the hearing. The federal tax liens arose due to Applicant’s neglect in filing tax returns for years in the late 1990sand early 2000s. Applicant’s family lived in a state affected by a major hurricane. Applicant incurred expenses on behalf of his family in the aftermath of the storm. In the Analysis portion of the decision, the Judge noted the affect that the storm had on Applicant’s financial condition. However, he also noted that Applicant’s significant tax debt problems arose prior to that. “Even though Applicant has known for more than a year of the government’s concern [expressed in the SOR] about his unpaid taxes and other delinquent debts, except for his child support obligation, he has yet to pay any of [his] past due debts. He owes more than $170,000 in past due taxes, a debt which continues to accumulate interest. Applicant has done too little to pay his past due obligations.” Decision at 11. Applicant challenges certain of the Judge’s findings of fact, principally the amount of his tax debts. After examining the record, we conclude that the Judge’s material findings of security concern are based upon substantial record evidence. See Directive ¶ E3.1.32.1. (Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.”) See also ISCR Case No. 06- 21025 at 2 (App. Bd. Oct. 9, 2007). The differences in amounts alleged by Applicant do not change the security significance of the tax debts, under the facts of this case. Therefore, even if the Judge erred, the error is harmless. See ISCR Case No. 01-23362 at 2 (App. Bd. Jun. 5, 2006); ISCR Case No. 03-09915 at 4 (App. Bd. Dec. 16, 2004); and ISCR Case No. 01-11192 at 5 (App. Bd. Aug. 26, 2002). 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: Michael D. Hipple Michael D. Hipple 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