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ISCR Case 09-07853 — CASE

ISCR Case 09-07853denied

Case Headnote

ISCR Case No. 09-07853

Oct 6, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

The applicant, representing himself, was denied a security clearance under Guideline F (Financial Considerations) due to significant financial issues. The denial stemmed from 11 admitted delinquent debts and two unpaid judgments, totaling $16,634.

While the applicant made some payments on debts not specified in the Statement of Reasons, the judge determined there was insufficient evidence to mitigate the ongoing financial concerns. Specifically, the applicant did not demonstrate responsible action regarding his financial issues or a good-faith effort to resolve his delinquent debts.

Ultimately, the judge concluded that the applicant's financial problems were not under control, leading to the denial of the security clearance. Disqualifying condition AG ¶ 19 was raised, while mitigating conditions AG ¶ 20(a), AG ¶ 20(b), and AG ¶ 20(c) were applied but found insufficient to overcome the concerns.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20(a)rejectedThe Behavior Was Not Recent or OngoingThe judge found that the applicant's financial problems were still ongoing.
AG ¶ 20(b)rejectedThe Applicant Has Received or Is Receiving Counseling for the ProblemThere is no evidence that the applicant received financial counseling.
AG ¶ 20(c)rejectedThe Applicant Has Initiated a Good-faith Effort to Repay Overdue Creditors or Otherwise Resolve DebtsThe judge found insufficient evidence for a determination that the applicant made a good-faith effort to resolve his delinquent debts.

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 issuedApr 9, 2010
Answer filed—Applicant requested decision on written record.
Hearing heldJul 29, 2010Decision issued by Administrative Judge Edward W. Loughran.
Decision dateOct 6, 2010Appeal affirmed by the Appeal Board.

Cite For

Insufficient Evidence to Mitigate Ongoing Financial Issues Under Guideline F
Criteria for Evaluating Financial Considerations in Security Clearance Cases
Standards for Appellate Review of Security Clearance Decisions.

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 based on financial considerations under Guideline F. The applicant argued that the decision was arbitrary and capricious, but the Board found no merit in this claim and affirmed the denial.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge’s adverse decision is arbitrary, capricious or contrary to law.

Why the Board ruled this way

The Board concluded 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. The Judge's unfavorable security clearance decision under Guideline F is sustainable.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan — Chair
James E. Moody
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 DIGEST: In light of Applicant’s financial history, his evidence that he had paid off some non- SOR debts and partially paid one SOR debt was not sufficient to mitigate the security concerns in his case. Adverse decision affirmed. CASE NO: 09-07853 DATE: 10/06/2010 DATE: October 6, 2010 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-07853

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 April 9, 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). Applicant requested the case be decided on the written record. On July 29, 2010, after considering the record, Administrative Judge Edward W. Loughran denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse decision is arbitrary, capricious or contrary to law. Applicant contends that the Judge’s adverse decision should be reversed because the evidence shows that he is trustworthy, reliable and lives within his means. His appeal brief contains new evidence, in the form of a documentary exhibit that indicates he has paid a debt subsequent to the close of the record in this case. The Board cannot consider this new evidence on appeal. See Directive ¶ E3.1.29. Applicant’s remaining arguments do not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. In this case, the Judge made the following relevant findings of fact: Applicant admitted owing 11 delinquent debts and two unpaid judgements totaling $16,634. Decision at 2. Although he paid six debts not alleged in the SOR and made a partial payment on one debt alleged in the SOR, the Judge was unable to make a determination that Applicant acted responsibly under the circumstances, principally because of questions that were unanswered by the limited information available in the record. Applicant has not resolved most of the debts alleged in the SOR and his financial issues are recent and ongoing. “There is no evidence that Applicant received financial counseling. There is insufficient evidence for a determination that Applicant made a good-faith effort to . . . resolve his delinquent debts, or that his overall financial problems are . . . under control.” Id. at 5. In light of the foregoing, the Judge could reasonably conclude that Applicant’s financial problems were still ongoing and that he had not met his burden of persuasion as to mitigation. See, e.g., ISCR Case No. 05-07747 at 2 (App. Bd. Jul. 3, 2007). The Judge weighed the limited mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. He found in favor of Applicant as to one of the SOR factual allegations. However, he reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. Applicant’s appeal argument can reasonably be construed as an alternative interpretation of the evidence. It is well established that such an argument is insufficient to demonstrate error. See, e.g., ISCR Case No. 06-10859 at 4 (App. Bd. Sep. 2, 2010). The Board does not review a case de novo. 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 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). Therefore, the Judge’s unfavorable security clearance decision under Guideline F is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board