CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 09-05700.a1 — CASE

ISCR Case 09-05700.a1unknown

Case Headnote

ISCR Case No. 09-05700.a1

Feb 24, 2011· Hon. Jean E. Smallin· appeal

Summary

This security clearance case involved a former Navy Electronics Technician whose application raised concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The applicant's financial difficulties were significant, stemming from his discharge from the Navy for misconduct. These issues included delinquent debts and a failure to make timely payments, which the Appeal Board attributed to his own actions.

Specifically, the Appeal Board found that the applicant's efforts to resolve his debts were unreasonably dilatory. His discharge for misconduct further raised questions about his reliability and judgment, contributing to the overall assessment.

Ultimately, the Appeal Board reversed an initial favorable decision. No mitigating conditions were found sufficient to overcome the disqualifying conditions related to his self-inflicted financial problems and the underlying misconduct that led to his Navy discharge. As a result, the applicant did not receive a security clearance.

Conditions Referenced

Disqualifying

F1raisedInability to Satisfy Debts
E2raisedPersonal Conduct That Creates a Risk to National Security

Mitigating

F3rejectedThe Conditions That Resulted in the Financial Difficulties Were Largely Beyond the Applicant's ControlThe applicant's financial problems originated from his own conduct.
E3rejectedThe Applicant Has Taken Significant Steps to Address the Financial IssuesThe applicant's debt repayment efforts were not timely or sufficient.

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 issuedFeb 19, 2010
Answer filed—
Hearing heldOct 19, 2010
Decision dateFeb 24, 2011Appeal Board reversed the favorable decision.

Cite For

Reversal of Favorable Decision Due to Self-inflicted Financial Issues
Dilatory Debt Repayment Undermining Mitigation Efforts
Impact of Personal Conduct on Security Clearance Eligibility

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

Reversed

The appeal involved a security clearance decision where the Administrative Judge initially granted the applicant a clearance. The Department Counsel appealed, arguing that the Judge's decision was not supported by the evidence. The Appeal Board reversed the decision, finding that the applicant's financial difficulties were due to his own misconduct and that he had not adequately mitigated the security concerns raised against him.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowDarlene D. Lokey Anderson — granted the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the Government (Department Counsel)Error sustained
The Judge's application of the mitigating conditions was unsupported by the record evidence.

Why the Board ruled this way

The Board found that the Judge's favorable decision was not supported by substantial evidence and was arbitrary and capricious, particularly regarding the applicant's financial issues and the application of mitigating conditions.

No rational connection between facts and conclusion

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: Applicant’s unemployment was a result of his discharge from the Navy for misconduct. Accordingly, his financial difficulties could not be attributed to causes outside his control. His efforts to pay his debts were unreasonably dilatory. Favorable decision reversed. CASE NO: 09-05700.a1 DATE: 02/24/2011 DATE: February 24, 2011 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-05700

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Melvin A. Howry, Esq., Department Counsel FOR APPLICANT Pro se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On February 19, 2010, 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). DOHA subsequently amended the SOR, raising security concerns under Guideline E (Personal Conduct). Applicant requested a hearing. On October 19, 2010, after the hearing, Administrative Judge Darlene D. Lokey Anderson granted Applicant’s request for a security clearance. Department Counsel appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issue on appeal: whether the Judge’s application 110 U.S.C. § 815. 210 U.S.C. § 887: “Any person subject to this chapter . . . who through neglect or design misses the movement of a ship, aircraft, or unit with which he is required in the course of duty to move shall be punished[.]” of the mitigating conditions was unsupported by the record evidence. Consistent with the following discussion, we reverse the decision of the Judge. Facts The Judge found that Applicant is an Electronics Technician for a Defense contractor. He has a GED and two years of college. Applicant purchased two rental properties with money he inherited from his grandmother. Subsequently, in 2001, he joined the U.S. Navy. He served in the Navy from 2001 until 2005. During this time, he bought another piece of real property, a personal residence. In 2004, Applicant experienced emotional problems while assigned to a ship. He also found it difficult to sleep because of his height, which was greater than the length of the beds. On two occasions, when the ship set out to sea for training exercises, Applicant stayed home. After the first occasion he was given non-judicial punishment (NJP)1 under the Uniform Code of Military Justice (UCMJ), for the offense of Missing a Movement.2 The punishment consisted of restriction to the ship. Following the second offense, he received NJP once again. The punishment consisted in a reduction in rank and bread and water for three days. After the second offense, Applicant was discharged from the Navy. His service was characterized as Under Other Than Honorable Conditions (OTH). After his discharge, he had a difficult time finding employment. He was not able to keep up with the mortgage payments on the three properties. He tried to sell them, but was not able to do so. The three properties went into foreclosure during 2008 and 2009. Applicant was unemployed following his discharge from the Navy. He found work in 2006 but was again unemployed later that year. He had another period of unemployment from September 2008 until February 2009. He did not make payments on his debts during his periods of unemployment. Applicant has several delinquent debts which are alleged in the SOR. Applicant had failed to file federal and state taxes for tax years 2005, 2006, and 2007. The SOR alleged a debt of $19,432 owed to the state. This debt has been satisfied through a wage garnishment action. Applicant has filed his income tax returns for the years in question. Applicant owed $4,582 on a credit card that he had used for paying living expenses. By the close of the record, this debt had been satisfied. He owed $8,096 on another credit card. He has entered into an agreement to make a down payment after the hearing and then pay the debt off in monthly increments. Finally, he owed $1,884 to a creditor, which he paid in full in March 2010. He and his fiancée are living with her parents in order to save money to purchase a house. He is paying both his and his fiancée’s monthly expenses. Applicant enjoys a good reputation for work performance, trustworthiness, and integrity. While in the Navy he received the Navy and Marine Corps Achievement Medal.

FOOTNOTES

3 An OTH is the most severe administrative service characterization, imposed for “one or more acts or omissions that constitute a significant departure form the conduct expected of members of the Naval Service.” Naval Military Personnel Manuel 1910-304. AE I, Applicant’s Certificate of Discharge, shows his re-enlistment code to be R-4. Such a code means that the member is not eligible to re-enlist and waivers are not authorized. Navy Recruiting Manual Enlisted COMNAVCRUITCOMINST 1130.8F. Discussion A Judge is required to “examine the relevant data and articulate 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 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). The Appeal Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary, capricious, or contrary to law. Directive ¶¶ E3.1.32.3 and E3.1.33.3. 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 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. “The application of disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole.” See, e.g., ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20, 2006). In deciding whether the Judge’s rulings or conclusions are arbitrary or capricious, the Board will review the 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. In deciding whether the Judge's rulings or conclusions are contrary to law, the Board will consider whether they are contrary to provisions of Executive Order 10865, the Directive, or other applicable federal law. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). Department Counsel argues that the Judge’s favorable decision is not supported by the record evidence, viewed as a whole. This argument is persuasive. We note the Judge’s findings and record evidence of the following, which are not consistent with the Judge’s favorable decision: Applicant was involuntarily discharged from the Navy for misconduct, i.e., two incidents of missing his ship’s movement. The voyages were each of two weeks’ duration.3 Concerning the reason for his actions, Applicant testified, “I just didn’t want to be there. I didn’t have anything to do there . . . I felt so incredibly trapped and anxious and I went to Medical and . . . tried to see what

4 Directive, Enclosure 2 ¶ 17(c): “the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment[.]” they could do for me . . . I just felt very anxious, like I couldn’t breathe. I was extremely agitated all the time.” Tr. at 49-50. The record raises a real possibility that, “if faced with a work situation in which he is unhappy, [Applicant] would, again, act in a manner that best suits his self interests and is detrimental to the Government’s interests.” Department Counsel Brief at 8. The testimony quoted above is not consistent with the Judge’s conclusion that “it is unlikely that . . . Applicant’s misconduct . . . would recur.” Decision at 8. It undermines the Judge’s favorable application of Personal Conduct Mitigating Condition (PCMC) 17(c).4 The record supports a conclusion that Applicant’s financial problems originated from his own conduct, i.e., his purchase of multiple properties and his Navy discharge for misconduct, rather than from circumstances outside his control. As Department Counsel notes in his brief, Applicant was actually overextended prior to joining the Navy. Applicant’s significant tax debt was resolved through a wage garnishment rather than a voluntary effort at debt repayment. See ISCR Case No. 08-06058 at 6 (App. Bd. Sep. 21, 2009) (“[S]atisfaction of a debt through the involuntary establishment of a creditor’s garnishment is not the same as, or similar to, a good-faith initiation of repayment by the debtor.”) His other significant debt remains substantially unresolved at the close of the record. Applicant has devoted funds to paying off his fiancée’s debts rather than his own and to saving money for purchasing another house. Department Counsel persuasively argues that a house is a discretionary purchase and that, under the facts of this case, Applicant’s relative neglect of his outstanding credit card debt reflects poorly upon his judgment. Department Counsel notes that Applicant’s security clearance application (Government Exhibit 1) demonstrates that he was aware of his financial problems at the time he submitted it, in February 2009. However, he did not begin paying on his delinquent debts until late 2009. Department Counsel persuasively argues that this was an unreasonably dilatory response to Applicant’s financial problems, which undercuts Applicant’s efforts to demonstrate mitigation. The record as a whole does not support a conclusion that Applicant has met his burden of persuasion under the standard set forth in Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security’”). The Judge’s favorable decision under Guideline E and Guideline F is not sustainable. Order The Judge’s favorable security clearance decision is REVERSED. 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