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ISCR Case 11-05492.a1 — CASE

ISCR Case 11-05492.a1denied

Case Headnote

ISCR Case No. 11-05492.a1

Dec 19, 2012· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline F, Financial Considerations. The Appeal Board affirmed the denial, concluding that the applicant failed to provide sufficient evidence to mitigate the financial issues raised by the government. The Board found the judge's decision to be reasonable and consistent with national security interests.

The denial was based on Disqualifying Condition F1, which addresses financial difficulties. While Mitigating Condition F3, indicating good-faith efforts to resolve debt, was considered, it was ultimately not applied.

The applicant failed to demonstrate any error in the judge's factual findings. Crucially, he did not provide independent documentary evidence to show the payment of his debts or concrete, good-faith efforts to resolve his financial problems.

Conditions Referenced

Disqualifying

F1raisedFinancial Considerations

Mitigating

F3rejectedThe Individual Has Made a Good Faith Effort to Repay Overdue Creditors or Otherwise Resolve Debts.The applicant did not present sufficient evidence to demonstrate good faith efforts to resolve financial issues.

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 24, 2012
Answer filed—Applicant requested decision on written record.
Hearing heldSep 28, 2012
Decision dateDec 19, 2012

Cite For

Affirmation of Denial Based on Insufficient Financial Mitigation Evidence
Importance of Independent Documentary Evidence in Financial Cases
Standard for Security Clearance Consistent with National Security Interests

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's decision was arbitrary and capricious, citing improvements in his financial situation. The Board affirmed the Judge's decision, finding no harmful error and that the Judge's conclusions were supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRobert E. Coacher — 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 argued that the Judge's adverse clearance decision is arbitrary, capricious or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for the decision, including a rational connection between the facts found and the choice made. The Board concluded that the Judge's unfavorable security clearance decision was sustainable.

Standard of review applied

No de-novo re-decisionNo new evidence on appealSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural compliance

Appeal Board panel

Michael Y. Ra’anan — Chair
Jean E. Smallin
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: Appeal Board cannot consider new evidence on appeal. Applicant has not demonstrated error in the Judge’s findings of fact. Adverse decision affirmed. CASE NO: 11-05492.a1 DATE: 12/19/2012 DATE: December 19, 2012 In Re: Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-05492

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 24, 2012, 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 September 28, 2012, after considering the record, Administrative Judge Robert E. Coacher denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse clearance decision is arbitrary, capricious or contrary to law. On appeal, Applicant seeks reversal of the Judge’s adverse decision arguing that, given his current circumstances, he has taken reasonable steps to resolve his financial problems. He also asserts that he has now paid off two of his debts, and that “. . . until more money is available, it would not be in [his] best interest to make arrangements [to pay off his three other debts] because that would possibly cause further debt problems.” Applicant’s Brief at 1. His argument is predicated in part on matters not in the record below. The Board cannot consider this new evidence on appeal. See Directive ¶ E3.1.29. To the extent Applicant’s brief could be construed as challenging the Judge’s findings, he has not identified any harmful error that would change the outcome of the decision. Applicant’s presentation does not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. A party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 09-04601 at 2 (App. Bd. May 11, 2011). In his decision, the Judge weighed the available evidence, evaluated the seriousness of the disqualifying circumstances, and considered the possible application of relevant conditions and factors. He noted that Applicant had presented favorable character evidence, but that he had not presented independent documentary evidence showing the payment of debts, the completion of financial counseling, or good-faith efforts to otherwise resolve his financial problems. Accordingly, the Judge reasonably explained why there was insufficient mitigating evidence to overcome the government’s security concerns. Decision at 2, 3 and 5. 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 is sustainable.

ORDER

The Judge’s decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board