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ISCR Case 10-03301.a1 — CASE

ISCR Case 10-03301.a1granted

Case Headnote

ISCR Case No. 10-03301.a1

Jun 7, 2012· Hon. Jean E. Smallin· appeal

Summary

This security clearance decision involved an applicant, represented by counsel, under Guidelines E (Personal Conduct) and F (Financial Considerations). The primary issues stemmed from a court-ordered debt incurred during the applicant's divorce.

The judge determined that the applicant had taken significant and effective steps to address this specific debt. Furthermore, the applicant demonstrated a broader pattern of financial responsibility, having no other outstanding debts and consistently living within his means.

The applicant acknowledged past mistakes related to the financial issues and successfully demonstrated overall financial stability. Applying mitigating conditions under Adjudicative Guideline Paragraph 20, the security clearance was GRANTED.

Conditions Referenced

Mitigating

AG ¶ 20appliedMitigating Condition 1The applicant has taken steps to address the only debt alleged.
AG ¶ 20appliedMitigating Condition 2The applicant has demonstrated financial stability and lives within his means.

Key Rule Quoted

“The Judge’s conclusions are sustainable.”

Procedural Posture

SOR issuedAug 23, 2011
Answer filed—
Hearing heldFeb 29, 2012
Decision dateJun 7, 2012

Cite For

Application of Mitigating Conditions Under Guideline F
Demonstrating Financial Stability in Security Clearance Cases
Acknowledgment of Past Mistakes as a Mitigating Factor

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 security clearance decision where the Department Counsel challenged the Administrative Judge's favorable ruling for the Applicant based on financial considerations and personal conduct. The Board affirmed the Judge's decision, finding no harmful error in her analysis or application of mitigating conditions.

Appealed bythe Government (Department Counsel)

Applicant representationAttorney

Judge belowMary E. Henry — 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)Rejected
Department Counsel argued that the Judge erred in her application of the mitigating conditions and in her whole-person analysis.

Why the Board ruled this way

The Board found that the Judge's conclusions regarding the Applicant's financial situation and efforts to rectify his debts were sustainable and supported by substantial evidence. The Judge's whole-person analysis was deemed appropriate given the circumstances.

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; Guideline E DIGEST: The Judge noted that a debt arising from Applicant’s divorce was the only one alleged in the SOR, and that he had taken steps to ensure that it is paid off. The Judge concluded that Applicant has no other outstanding debts, lives within his means, and has reduced or eliminated any vulnerability to exploitation that might otherwise have arisen from his debt. The Judge’s conclusions are sustainable. Favorable decision affirmed. CASE NO: 10-03301.a1 DATE: 06/07/2012 DATE: June 7, 2012 In Re: ------------------------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-03301

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Braden Murphy, Esq., Department Counsel FOR APPLICANT W. Jamiel Allen, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 23, 2011, 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 February 29, 2012, after the hearing, Administrative Judge Mary E. Henry 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 issues on appeal: whether the Judge erred in her application of the mitigating conditions and whether the Judge’s whole-person analysis was erroneous. Consistent with the following, we affirm the Judge’s decision. The Judge found that Applicant and his wife divorced in 2008. The divorce decree required Applicant to pay his ex-wife $6,320 plus an additional $4,702 for attorney fees. Applicant did not make these required payments, believing that he had paid her enough during their marriage. For example, he had given her $20,000 from his retirement account for start-up costs for a business. Eventually, Applicant’s wife got a court order directing that he make the payments. During the processing of his security clearance application he stated that he did not intend to pay his wife the monies owed as a consequence of their divorce. After receiving the SOR, Applicant hired an attorney. After some effort, he was able to get in touch with Applicant’s ex-wife, asking for a meeting to discuss payment options. She refused. Over the next several weeks, Applicant and his attorney worked with Applicant’s bank to set up a money transfer. Applicant’s attorney kept in regular e-mail contact with the ex-wife. Less than a month prior to the hearing, the attorney wrote Applicant’s wife to advise her on the steps she needed to take to ensure that Applicant’s money could be deposited in her account. She did not respond. In early January 2012 he contacted her again, and she provided the requested information. Applicant deposited $400 in her account in early January 2012 and another $200 later on that month. He set up an automatic transfer form his bank to his ex-wife’s account. He is not past due on other accounts, although he has enrolled in a debt management program. He has enough income to make the payments to his wife’s account. Applicant has acknowledged that his failure to pay the court- ordered debt was a bad decision. In the Analysis, the Judge noted that the debt arising from Applicant’s divorce was the only one alleged in the SOR and that he had taken steps to ensure that it is paid off. She stated that he has no other outstanding debts, and he lives within his means. She concluded that, by acknowledging his mistake and taking steps to correct it, Applicant has reduced or eliminated any vulnerability to exploitation that might otherwise have arisen from his debt. We note the Judge’s findings, and other record evidence, as follows: (1) Applicant’s SOR alleged only one delinquent debt; (2) he has set up an automatic payment plan to discharge this debt; (3) his financial condition is stable and he is paying his other debts as they arise; and (4) Applicant’s attorney encountered difficulty in communicating with Applicant’s ex-wife. Additionally, we also note record evidence that, during the time between Applicant’s divorce and the corrective actions described above, Applicant was deployed in support of U.S. interests in the Middle East, on one occasion for nearly six months. After considering the record as a whole, we conclude that the findings and evidence cited above support a favorable whole-person conclusion. The Judge’s decision is supportable on this record. We do not have to agree with a Judge’s decision to find it sustainable. See, e.g., ISCR Case No. 09-02281 at 3 (App. Bd. Apr. 18, 2011).

ORDER

The Judge’s favorable security clearance determination 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