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ISCR Case 10-07080.a1 — CASE

ISCR Case 10-07080.a1denied

Case Headnote

ISCR Case No. 10-07080.a1

Oct 12, 2011· Hon. Jeffrey D. Billett· appeal

Summary

The applicant, a government contractor and high school graduate, was denied a security clearance under Guideline F (Financial Considerations) due to unresolved financial issues. The decision was affirmed after a judge found insufficient evidence of responsible financial conduct.

The primary disqualifying condition was the applicant's numerous delinquent debts, which largely stemmed from medical expenses. Although the applicant made recent attempts to address these debts, the judge determined these efforts were insufficient to demonstrate a pattern of responsible financial management.

Ultimately, the judge concluded that the applicant had not acted responsibly regarding his debts prior to receiving the Statement of Reasons (SOR), leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 20(b)rejectedFinancial ConsiderationsThe judge noted that the applicant's financial problems were largely beyond his control but concluded he had not demonstrated responsible action.

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 issuedMar 16, 2011
Answer filed—
Hearing held—
Decision dateOct 12, 2011

Cite For

Affirmation of Adverse Security Clearance Decisions Based on Unresolved Financial Issues
Insufficient Evidence of Responsible Financial Conduct Despite Recent Attempts at Resolution
Importance of Financial Responsibility for 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

Affirmed

The appeal involved an applicant seeking a security clearance who was denied due to financial considerations under Guideline F. The applicant argued that the Judge mis-weighed evidence and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoan Caton Anthony — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge failed to consider or mis-weighed the record evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge considered all relevant evidence and articulated a satisfactory explanation for the decision, with a rational connection between the facts found and the choice made. The adverse decision was sustainable on the record.

Standard of review applied

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

Appeal Board panel

Jeffrey D. Billett — Chair
Jean E. Smallin
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 does not cite to anything which would rebut the presumption that the Judge considered all th evidence. Adverse decision affirmed. CASENO: 10-07080.a1 DATE: 10/12/2011 DATE: October 12, 2011 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-07080

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 March 16, 2011, 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 a decision on the written record. On July 14, 2011, after considering the record, Administrative Judge Joan Caton Anthony denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge failed to consider, or mis- weighed, the record evidence and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Consistent with the following, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: Applicant is an employee of a Government contractor. A high school graduate, he served in the National Guard from 1984 until 1990. Married for the second time, Applicant is the father of six children and one stepchild. In 2000, Applicant filed for Chapter 7 bankruptcy protection and was discharged later that year. Since then, he has acquired numerous delinquent debts, principally for medical expenses, though others are for consumer purchases, phone services, automobile loans, etc. He attributes his financial problems to the failure of a business, to legal fees associated with his efforts to adopt two stepchildren, and to periods of unemployment. Most of his medical bills were the result of a leg fracture at a time when he had no health insurance. He has resolved some of his debts and has made payments, or other attempts at resolution, on others. He enjoys an excellent reputation for the quality of his job performance. In her analysis, the Judge noted those circumstances which were outside Applicant’s control. However, she concluded that Applicant had not demonstrated responsible action in regard to his debts.1 She noted that Applicant had not begun to address his debt problem until his receipt of the SOR. In the whole-person analysis, the Judge stated: Since receiving the SOR in March 2011, Applicant has attempted to pay, settle, or enter into payment plans for the majority of his delinquent debts. However, since Applicant’s efforts to resolve his delinquent debts are recent, it is unclear from this record whether he will maintain responsible financial conduct in the future. His recent attempts to satisfy his delinquent debts occur after years of inaction. At issue here is not simply whether he can resolve the majority of his financial delinquencies after receiving the SOR. Of greater concern is whether his financial decisions and circumstances raise concerns about his fitness to hold a security clearance. Decision at 11. In his appeal brief, Applicant draws attention to record evidence concerning his efforts to resolve his debts. He argues that this evidence is a sufficient reason for granting him a clearance. A Judge is presumed to have considered all of the evidence in the record. See, e.g., ISCR Case No. 09-06691 at 3-4 (App. Bd. May 16, 2011). Applicant cites to nothing in the decision that would tend to rebut that presumption. Rather, he appears to take issue with the manner in which the Judge weighed the record evidence. A party’s disagreement with the Judge’s weighing of the evidence is not sufficient to demonstrate that the Judge weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 10-03380 at 3 (App. Bd. Jul. 27, 2011). He also states that, without a clearance, he will lose his job. However, the effect that an unfavorable decision may have on an applicant is not relevant or material to a security clearance determination. See, e.g., ISCR Case No. 10-06672 at 3 (App. Bd. Jul. 8, 2011). Applicant states that his employment in an area in which the U.S. is conducting military operations impaired his ability to provide evidence in support of his request for a clearance. However, his response to the File of Relevant Material (FORM) runs to well over a hundred pages. In addition, he provided answers to DOHA interrogatories and explanatory replies to the SOR. He has pointed to nothing that he would have included but for the circumstances of his job. Neither the record nor Applicant’s brief support a conclusion that his ability to present his case for mitigation was significantly impaired. The record supports a conclusion 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). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Chairperson, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board

FOOTNOTES

1 Directive, Enclosure 2 ¶ 20(b): “the conditions that resulted in the financial problem were largely beyond the person’s control (e.g., loss of employment, a business downturn, unexpected medical emergency, or a death, divorce or separation), and the individual acted responsibly under the circumstances[.]”