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ISCR Case 10-09256 — CASE

ISCR Case 10-09256denied

Case Headnote

ISCR Case No. 10-09256

Jul 27, 2011· Hon. Jeffrey D. Billett· appeal

Summary

An applicant representing herself was denied a security clearance under Guideline F (Financial Considerations) due to significant financial issues. The denial was based on the presence of three judgments and fifteen delinquent debts. The applicant failed to demonstrate responsible action regarding these debts and did not provide evidence of financial counseling or good-faith efforts toward resolution.

The appeal board affirmed the denial, concluding that the applicant did not present sufficient mitigating circumstances to outweigh the security concerns associated with her financial situation. Disqualifying conditions under AG ¶ 19 were raised, while mitigating conditions under AG ¶ 20 were not adequately applied.

Ultimately, the applicant's security clearance was denied because her financial history, characterized by multiple judgments and delinquent debts, coupled with a lack of demonstrated efforts to address these issues, presented an unacceptable security risk.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20rejectedMitigating ConditionsThe applicant did not demonstrate that the conditions resulting in her financial problems were largely beyond her control.
AG ¶ 20rejectedMitigating ConditionsThe applicant's financial issues were ongoing and she did not show evidence of receiving counseling.
AG ¶ 20rejectedMitigating ConditionsThe applicant did not initiate a good-faith effort to repay overdue creditors.

Key Rule Quoted

“A Judge is presumed to have considered all of the record evidence.”

Procedural Posture

SOR issuedDec 22, 2010
Answer filed—
Hearing heldMay 5, 2011Decision on written record.
Decision dateJul 27, 2011

Cite For

Affirmation of Adverse Decision Due to Financial Issues Under Guideline F
Presumption That a Judge Considered All Record Evidence
Insufficient Demonstration of Mitigating Circumstances in Financial Cases

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 denial of a security clearance based on financial considerations under Guideline F. The applicant argued that the Judge failed to consider all 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 belowCarol G. Ricciardello — 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 contended that the Judge failed to consider all of the record evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued 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, maintaining a rational connection between the facts and the conclusion reached.

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

Jeffrey D. Billett
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 failed to rebut the presumption that the Judge considered all of the record evidence. Adverse decision affirmed. CASE NO: 10-09256 DATE: 07/27/2011 DATE: July 27, 2011 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-09256

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 December 22, 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 a decision on the written record. On May 5, 2011, after considering the record, Administrative Judge Carol G. Ricciardello 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 all of the record evidence and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm the Judge’s decision.

FOOTNOTES

1 Directive, Enclosure 2 ¶ 20(b): “the conditions that resulted in the financial problem were largely beyond the person’s control . . . and the individual acted responsibly under the circumstances[.]”

2 Directive, Enclosure 2 ¶ 20(a): “the behavior happened so long ago . . . that it is unlikely to recur . . . [.]”

3 Directive, Enclosure 2 ¶ 20(c): “the person has received or is receiving counseling for the problem and/or there are clear indications that the problem is being resolved or is under control[.]”

4 Directive, Enclosure 2 ¶ 20(d): “the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts[.]” The Judge made the following pertinent findings of fact: Applicant has worked for her current employer since November 2009. She was unemployed for two months before taking her present job. The SOR alleges, and Applicant admitted, three judgments and fifteen delinquent debts. Applicant’s financial problems began about ten years ago, when her mother became ill and Applicant traveled several times a year to assist her. Her mother died in 2004, and her brother also became ill, dying in 2008. In 2003 Applicant was laid off from her job. Although she found another one, she received less pay. Applicant entered into an agreement with one creditor to make three monthly payments in settlement of the debt. However, she did not present evidence of actually having made a payment. She agreed to a repayment plan with another creditor, but presented evidence of only one payment pursuant to the plan, in October 2010. In the Analysis, the Judge acknowledged Applicant’s unemployment and her efforts to assist her mother and brother during their illnesses, which were circumstances outside Applicant’s control which affected her financial situation. However, the Judge concluded that Applicant had not demonstrated responsible action in regard to her debts.1 The Judge also concluded that Applicant’s debts are ongoing2 and that she had neither received financial counseling3 nor made good-faith efforts to resolve her debts.4 Accordingly, the Judge concluded that Applicant had failed to meet her burden of persuasion as to mitigation. On appeal, Applicant contends that the Judge failed to consider all of the record evidence, for example, her efforts at debt repayment and her evidence that she had not discussed her financial problems with others, thereby lessening the chance that knowledge of her problems might prompt others to coerce her. A Judge is presumed to have considered all of the record evidence. In this case, the Judge discussed in some detail Applicant’s evidence regarding her debt repayment plans, but she plausibly concluded that this evidence was not sufficient to outweigh the security concerns arising from the totality of Applicant’s financial circumstances. Applicant’s argument on appeal is not sufficient to demonstrate that the Judge ignored her evidence concerning her susceptibility to coercion. Applicant has not rebutted the presumption that the Judge considered all of the record evidence. See, e.g., ISCR Case No. 09-05995 at 2-3 (App. Bd. Feb. 10, 2011). 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 Member, 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