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ISCR Case 09-05398.a1 — CASE

ISCR Case 09-05398.a1denied

Case Headnote

ISCR Case No. 09-05398.a1

Jan 13, 2011· Hon. Michael Y. Ra'anan· appeal

Summary

A 47-year-old male applicant was denied a security clearance under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from substantial financial concerns, including admitted debts, and the applicant's failure to provide sufficient mitigating evidence.

Specifically, the applicant admitted to two debts but denied others without providing supporting documentation. This raised disqualifying conditions F.3 and E.2. While mitigating conditions F.2 and F.3 were considered, the judge found that the applicant did not adequately rebut or mitigate the security concerns presented by the government.

Ultimately, the judge concluded that the applicant failed to meet his burden of persuasion for a favorable security clearance decision, resulting in the denial of his clearance.

Conditions Referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts
E.2raisedDeliberately Providing False or Misleading Information

Mitigating

F.2rejectedThe Conditions That Resulted in the Financial Difficulties Were Largely Beyond the Person's ControlThe judge found that the mitigating evidence was insufficient to overcome the government's security concerns.
F.3rejectedThe Person Has Made Good Faith Efforts to Repay DebtsThe applicant did not provide adequate documentation to support claims of good faith efforts.

Key Rule Quoted

“A clearance may be granted only when 'clearly consistent with the interests of the national security.'”
— Dep’t of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedJul 20, 2010
Answer filed—Applicant requested a decision on the written record.
Hearing heldOct 29, 2010Decision made by Administrative Judge LeRoy F. Foreman.
Decision dateJan 13, 2011Appeal Board affirmed the decision.

Cite For

Substantial Evidence Required to Support Security Clearance Denial
Burden of Persuasion Lies with the Applicant
Mitigating Evidence Must Outweigh Disqualifying Factors for Clearance Approval.

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 who was denied a security clearance due to financial considerations and personal conduct concerns. The applicant argued that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and reasonable explanations for the denial.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowLeRoy F. Foreman — denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge’s decision denying him a security clearance is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's material findings of security concern were supported by substantial evidence and that the Judge reasonably explained why the Applicant failed to mitigate those concerns. The Board affirmed the Judge's decision as sustainable and not arbitrary or capricious.

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

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

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 E DIGEST: Judge’s material findings of security concern were supported by substantial record evidence. Judge reasonably explained why he concluded that Applicant had failed to mitigate the security concerns in Applicant’s case. Adverse decision affirmed. CASE NO: 09-05398.a1 DATE: 01/13/2011 DATE: January 13, 2011 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-05398

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 20, 2010, 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 decision on the written record. October 29, 2010, after considering the record, Administrative Judge LeRoy F. Foreman denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. On appeal, Applicant argues that the Judge’s decision denying him a security clearance is arbitrary, capricious, or contrary to law. Consistent with the following discussion, the Board affirms the Judge’s decision. The Judge made the following factual findings: Applicant is 47 years old; he married in 1988 and divorced in 2007. In his response to the SOR, Applicant admitted two of the four debts alleged. One was an unpaid judgment with a balance of about $5,800, and the other a delinquent credit card account with a balance of $6,301. Applicant hired a debt settlement service to resolve the second debt, but provided no documentation of payments. Applicant denied the other two debts, but he provided no documentation to support the denial. Applicant has resolved several other debts not alleged in the SOR. When Applicant filled out his security clearance application, he denied having any unpaid judgments or debt delinquencies of over 90 or 180 days in the last seven years. In his appeal brief, Applicant recounts his continuing efforts to pay off his debts. The brief includes two letters of recommendation and a credit report dated December 6, 2010. The Board cannot consider that information since it is new evidence that was not in the record below. See Directive ¶ E3.1.29. Moreover, the additional information is not indicative of error on the part of the Judge, since it was not available to him when he reviewed the record. The government’s security concerns were established, in part, when Applicant admitted two of the debts alleged in the SOR. Applicant was responsible for providing evidence to rebut, explain, extenuate, or mitigate the security concerns and had the ultimate burden of persuasion in obtaining a favorable security clearance decision. See Directive ¶ E3.1.15. Applicant received instructions and a copy of the Directive when he received the SOR. Applicant had the opportunity to submit additional information when he responded to the SOR. He requested a decision on the written record without a hearing before a Judge. After Department Counsel compiled the File of Relevant Material (FORM) for the Judge to review, Applicant had another opportunity to submit additional information for the Judge to consider, and he did submit some evidence. The Judge concluded that Applicant did not meet his burden of persuasion. The Appeal Board’s review of the Judge’s factual findings is limited to determining if they are supported by substantial evidence—“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.” Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966). After reviewing the record, the Board concludes that the Judge’s material findings are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. Considering the record evidence as a whole, the Judge’s material findings of security concern are sustainable. See, e.g., ISCR Case No. 09-02239 at 3 (App. Bd. Aug. 19, 2010). In his Findings of Fact, the Judge specifically referred to the mitigating circumstances contained in the FORM, including the fact that Applicant attributed his financial difficulties to the period surrounding his divorce in 2007. Decision at 2-3. However, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable, or vice versa. A party’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 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. 08-01105 at 2 (App. Bd. Dec. 15, 2008). A review of the record indicates that the Judge weighed the mitigating evidence in the record against Applicant’s financial history and considered the possible application of relevant mitigating conditions and factors. Decision at 4-6. The Judge reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. Id. The Board does not review a case de novo. The record evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007). The Judge examined the relevant data and articulated a satisfactory explanation for his decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Dep’t of the Navy v. Egan, 484 U.S. 518, 528 (1988). Accordingly, the Judge’s adverse decision is sustainable.

Applicant states that loss of his job due to denial of a security clearance will have an adverse impact on his ability to continue to improve his financial situation. However, the effect that an adverse decision may have on an applicant is not a relevant or material consideration in evaluating his or her security eligibility. See, e.g.,ISCR Case No. 08-08373 at 3 (App. Bd. Dec. 3, 2010).

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: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board