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ISCR Case 11-08541.a1 — CASE

ISCR Case 11-08541.a1denied

Case Headnote

ISCR Case No. 11-08541.a1

Jul 16, 2013· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline F (Financial Considerations) due to unresolved financial issues. The appeal board upheld the denial, agreeing with the judge's assessment that the applicant's financial problems were serious and ongoing, thus posing a security concern.

The judge applied Disqualifying Condition F1, indicating a history of not meeting financial obligations. While Mitigating Conditions F2 (good-faith efforts to resolve debt) and F3 (debt not caused by irresponsibility) were considered, they were ultimately insufficient to overcome the security concerns.

The denial was based on the applicant's failure to provide adequate evidence demonstrating that his financial issues had been resolved. The board concluded that the judge reasonably weighed the evidence, and the applicant's arguments were insufficient to overturn the decision.

Conditions Referenced

Disqualifying

F1raisedFinancial Considerations

Mitigating

F3rejectedInability to Satisfy DebtsThe judge found that the presence of some mitigating evidence did not outweigh the serious financial issues.
F2rejectedDebt Repayment EffortsThe judge concluded that the applicant's efforts were insufficient to mitigate the financial concerns.

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 issuedAug 6, 2012
Answer filed—Applicant requested a decision on the written record.
Hearing heldMay 17, 2013
Decision dateJul 16, 2013

Cite For

Upholding the Denial of Security Clearance Based on Financial Considerations Under Guideline F
The Standard for Weighing Mitigating Evidence Against Disqualifying Conditions
The Inability to Introduce New Evidence on Appeal

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 based on financial considerations. The applicant argued that the Judge's decision was arbitrary and that he had made reasonable efforts to resolve his financial issues. 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 belowMarc E. Curry — 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 contends that the Judge’s adverse decision is arbitrary, capricious or contrary to law.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge's decision was based on a reasonable assessment of the evidence and that any alleged errors were harmless. The Board affirmed the Judge's decision as it was not arbitrary, capricious, or contrary to law.

Standard of review applied

No de-novo re-decisionNo new evidence on appealArbitrary-and-capricious review

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: The Board cannot consider new evidence on appeal. Applicant asserts that the Judge erred in a finding of fact. The cited error appears to be merely typographical and, therefore, harmless. An ability to argue for an alternative interpretation of the evidence is not sufficient to demonstrate that the Judge mis-weighed the evidence. Adverse decision affirmed. CASE NO: 11-08541.a1 DATE: 07/16/2013 DATE: July 16, 2013 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-08541

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On August 6, 2012, DoD 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 that the case be decided on the written record. On May 17, 2013, after considering the record, Defense Office of Hearings and Appeals Administrative Judge Marc E. Curry 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. Applicant contends that the Judge’s adverse decision should be reversed because the evidence was sufficient to establish that he had been making reasonable efforts to resolve his financial problems. As part of his submission on appeal, he offers new evidence in the form of a narrative statement that explains his continuing actions to resolve his financial problems. The Board cannot consider this new evidence on appeal. See Directive ¶ E3.1.29. Applicant also notes that the statement in the Judge’s decision, that Applicant had retained a debt repayment agency in July 2012, was in error, in that he had retained the agency in 2010 and had made monthly payments of $570 to them since that time. The Judge’s statement regarding the date appears to be at most a typographical error when read in context with the other findings. The Judge based his adverse conclusions on the fact that Applicant had only “ . . . produced documentary evidence indicating that he made two monthly payments to the credit agency between May and June of 2012" and “[h]e failed to produce any evidence of additional payments to the credit agency, or any evidence that the balance of the debts owed to any of the creditors have decreased.” Decision at 2.

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. 12-11097 at 2 (App. Bd. Jun. 20, 2013). A review of the record indicates that the Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying circumstances and considered the possible application of relevant conditions and factors. He reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. Accordingly, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for his decision. “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 under is sustainable.

ORDER

The decision of the Judge 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