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ISCR Case 11-00125.a1 — CASE

ISCR Case 11-00125.a1denied

Case Headnote

ISCR Case No. 11-00125.a1

Jan 17, 2012· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance was denied for an applicant, a married father of five and shop supervisor for a Federal contractor, primarily under Guideline F (Financial Considerations). The denial stemmed from significant delinquent debts totaling $141,911, including five debts that had been charged off.

The applicant failed to provide a comprehensive financial statement, or any evidence detailing his income, expenses, or available resources for debt repayment. While the applicant raised claims of due process violations, the Appeal Board rejected these, finding no indication that the Judge overlooked relevant information.

Ultimately, the Appeal Board affirmed the denial, concluding that the applicant did not present sufficient evidence of financial responsibility or compliance with repayment plans.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe applicant did not provide sufficient evidence to demonstrate that his financial issues were under control.

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 issuedApr 8, 2011
Answer filed—
Hearing held—
Decision dateJan 17, 2012

Cite For

Denial of Security Clearance Due to Significant Financial Issues Under Guideline F
Importance of Providing Evidence of Financial Responsibility in Clearance Determinations
Rejection of Due Process Claims in Security Clearance Appeals

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 was filed by an applicant whose request for a security clearance was denied based on financial considerations under Guideline F. The applicant raised issues regarding due process, evidence consideration, and the arbitrariness of the decision. The Board affirmed the Administrative Judge's decision, finding no harmful errors 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

Due-process / fairness — raised by the applicantRejected
Applicant contended that he was denied due process.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge failed to consider all of the record evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant claimed that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Administrative Judge's decision, affirming that the Judge properly considered the evidence and articulated a rational connection between the facts and the decision made.

Standard of review applied

No new evidence on appealSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
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: Appeal Board cannot consider new evidence. Record discloses no reason to believe that Applicant was denied his right to present evidence. Adverse decision affirmed. CASE NO: 11-00125.a1 DATE: 01/17/2012 DATE: January 17, 2012 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-00125

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 8, 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 October 31, 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 Applicant was denied due process; whether the Judge failed to consider all of the record evidence; and whether the Judge’s decision was arbitrary, capricious, or contrary to law. Consistent with the following we affirm the Judge’s decision. Note: The SOR included a paragraph 2, which quoted the Guideline E security concern

FOOTNOTES

1 This finding is contained in the Analysis portion of the Judge’s decision. as found in Directive, Enclosure 2 ¶ 15. However, paragraph 2 contained no allegation of security significant conduct. Department Counsel noted this anomaly and presented no evidence or argument under Guideline E. The Judge dismissed the reference to Guideline E. Decision at 2. The Judge made the following pertinent findings of fact: Applicant is a married father of five. He is a shop supervisor for a Federal contractor. He has worked in that capacity, and as a mechanic, for other employers. Applicant owes delinquent debts, totaling $141,911. Five of the debts have been charged off. In his clearance interview, he stated that he would follow up on alleged debts which he claimed not to recognize. Additionally, he entered into a 12-month temporary payment plan for a charged off second mortgage alleged in the SOR. However, he has not had credit counseling. He did not provide a financial statement, and the record contains no information as to his income, monthly expenses, savings, or other resources available for debt repayment. After receiving the SOR, he pursued Chapter 7 bankruptcy protection. He provided no documents evidencing a bankruptcy filing or showing which debts were resolved through bankruptcy.1 In the Analysis, the Judge noted the paucity of record evidence to show compliance with Applicant’s repayment plan. She stated that the record before her was sparse as to mitigating evidence and that she could not conclude that Applicant’s problems were under control. Applicant’s brief includes evidence not contained in the record, for example, detailed information regarding the circumstances underlying his debts. We cannot consider new evidence on appeal. Directive ¶ E3.1.29. See ISCR Case No. 10-10087 at 2 (App. Bd. Dec. 8, 2011). Applicant contends that the Judge did not consider all of the record evidence, or that she mis- weighed the evidence. He points to his employment record, arguing that he would not have held such jobs if he had been perceived as untrustworthy. The Decision demonstrates that the Judge considered Applicant’s employment history. However, given the extent of his delinquent debts and the scarcity of mitigating evidence, her adverse decision is sustainable. Applicant has not rebutted the presumption that the Judge considered all of the record evidence. Neither has he demonstrated that she did not properly weigh the evidence. See, e.g., ISCR Case No. 04-12742 at 3 (App. Bd. Feb. 25, 2011). Applicant cites to the Judge’s finding that he had provided little evidence regarding the details of his bankruptcy. He states that information that DOHA sent him explaining the process was vague and that he did not know that he was to present more detailed information. However, he was provided with a copy of the FORM, which included the evidence underlying the Guideline F allegations. An accompanying letter advised Applicant as follows: [Y]ou have an opportunity to review the attached copy of that complete file and submit any material you wish the Administrative Judge to consider or to make any objections you may have as to the information in the file. The letter also advised him to pay “careful attention” to his right to be represented by counsel. Letter to Applicant, dated June 17, 2011. In a DOHA proceeding, it is the applicant’s task to present evidence in mitigation of the security concerns which he has admitted and/or which have been established by the Government’s evidence. Applicant provided a written response to the FORM, which contained some information about his bankruptcy. The record discloses no reason to believe that Applicant was denied his right to present evidence or that he was not adequately advised of his rights under the Directive. See, e.g., ISCR Case No. 08-04464 at 2 (App. Bd. May 8, 2009). 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: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board