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ISCR Case 11-09742.a2 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date10/29/2013
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionsSee the hearing decision (Case 11-09742.h2) →See the appeal decision (Case 11-09742.a1) →See the hearing decision (Case 11-09742.h1) →
Participants
Applicant Representation: Pro Se
Judge: Jeffrey D. Billett, Michael Y. Ra'anan, William S. Fields
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline FFinancial Considerations · Against Applicant

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ISCR Case 11-09742.a2denied

Case Headnote

ISCR Case No. 11-09742.a2

Oct 29, 2013· Hon. Jeffrey D. Billett· appeal

Summary

A 31-year-old female applicant was denied a security clearance under Guideline F, Financial Considerations, due to unresolved financial issues. The applicant had delinquent debts exceeding $31,000, with no payments made for over eight months. These ongoing financial problems raised concerns about her reliability and judgment.

While the applicant claimed to be enrolled in a debt management program, the judge found insufficient evidence of responsible financial management, specifically noting the lack of payments. Disqualifying conditions under AG ¶ 20(a) were raised, and mitigating conditions under AG ¶ 20(b) and AG ¶ 20(c) were considered but ultimately not applied to overcome the concerns.

The judge concluded that the recent and ongoing nature of the financial problems warranted denial. This decision was subsequently affirmed by the appeal board, which upheld the finding that the applicant's financial situation presented an unacceptable security risk.

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedFinancial Considerations

Mitigating

AG ¶ 20(b)rejectedMitigating ConditionThe applicant's unemployment was beyond her control, but she did not act responsibly under the circumstances.
AG ¶ 20(c)appliedMitigating ConditionThe applicant received credit for financial counseling, but evidence did not support that her financial problems were under control.

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 issuedOct 19, 2012
Answer filed—
Hearing held—Decided on the written record.
Decision dateOct 29, 2013Appeal board affirmed the judge's decision.

Cite For

Insufficient Evidence of Financial Management Under Guideline F
Rejection of Claims of Financial Responsibility Due to Lack of Payments
Affirmation of Adverse Decisions Based on Ongoing Financial Issues

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 who was denied a security clearance due to financial considerations under Guideline F. The applicant argued that the Judge did not consider all evidence and misapplied mitigation. The Board affirmed the Judge's decision, finding that the conclusions were supported by the record and that the applicant had not demonstrated that her financial issues were under control.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran — 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 did not consider all the evidence regarding her debt management plan.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant contended that the Judge's conclusions concerning mitigation were not supported by the record evidence.

Why the Board ruled this way

The Board found that the Judge's conclusions were supported by substantial evidence and that the Judge did not act arbitrarily or capriciously in denying the security clearance.

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

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
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 Judge concluded that because it has been more than eight months since Applicant made any payments, the evidence does not support a conclusion that she acted reasonably under the circumstances. This conclusion is reasonably supported by the record evidence. Adverse decision affirmed. CASENO: 11-09742.a2 DATE: 10/29/2013 DATE: October 29, 2013 In Re: ------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-09742

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 October 19, 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

FOOTNOTES

1 After his initial decision was remanded, the Judge, on his own motion and without objection, gave Applicant until July 16, 2013 to provide any additional material she would like to have considered. He later granted Applicant’s request to extend the time for submissions until August 7, 2013. Applicant made a timely submission of an e-mail with an attachment.

2 “[T]he 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[.]” be decided on the written record. On April 29, 2013, after the close of the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Edward W. Loughran denied Applicant’s request for a security clearance. Applicant appealed, pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. On July 8, 2013, The Board issued a Remand Decision with instructions to the Judge. On August 9, 2013, the Judge issued a Remand Decision wherein he again denied Applicant’s request for a security clearance. Applicant appealed pursuant to ¶¶ E3. 1.28 and E3.1.30 of the Directive. Applicant raises the following issues on appeal: (1) whether the Judge considered all the record evidence; and (2) whether the Judge’s conclusions concerning mitigation are supported by record evidence. For the following reasons, the Board affirms the Judge’s decision. The Judge found: Applicant is 31 years old. Applicant had periods of unemployment after she was discharged from the military in 2005. She was unable to pay all her bills, and a number of debts became delinquent. She is behind on six debts totaling in excess of $31,000. Three debts that had been delinquent have been paid. She had a garnishment action initiated against her for one of the debts. In August 2012 she indicated that upon completion of her wage garnishment, she would contact her creditors as funds become available. Applicant contracted with a debt management company on August 5, 2013, to assist her in resolving her debts. She enrolled 11 debts, totaling $35,703, in the company’s debt management program (DMP). The estimated duration of the DMP is 37 months. Applicant agreed to an initial deposit of $50, followed by payments of $520 every other week, starting on August 30, 2013. After the company’s monthly maintenance fee, the company agreed to make monthly payments of $976 to Applicant’s creditors. Applicant receives financial counseling as part of the program.1 The Judge concluded: Applicant’s unemployment was beyond her control. To be fully applicable, AG ¶ 20(b)2 also requires that the individual act responsibly under the circumstances. The total amount of the six debts that Applicant admitted owing is more than $31,000. In August 2012, Applicant wrote in response to DOHA interrogatories that upon completion of a wage garnishment, she would contact her creditors “as funds become available.” The garnishment was completed before Applicant responded to the SOR on November 26, 2012. She has not established that she has made any payments toward her delinquent debts since the garnishment. Applicant has a plan to pay her debts through the DMP, but she has not taken significant actions to implement the plan. There is insufficient evidence for a determination that Applicant’s financial problems are under control or that they will be resolved within a reasonable period. Applicant’s financial problems are recent and ongoing. No evidence supports a determination that they are unlikely to

3 “[T]he 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[.]” recur. They continue to cast doubt on Applicant’s current reliability, trustworthiness, and good judgment. Applicant made payments toward her delinquent debts in 2010, 2011, and 2012, but there is no evidence that she made any payments since at least November 2012. Because it has been more than eight months since Applicant made any payments, the evidence does not support a conclusion that she acted reasonably under the circumstances. Applicant receives credit for her financial counseling, establishing the first prong of AG ¶ 20(c),3 but there is insufficient evidence for a determination that Applicant’s financial problems are under control or that they will be resolved within a reasonable period. The second prong of AG ¶ 20(c) is not applicable. Security concerns remain despite the presence of some mitigation. Applicant argues that the Judge’s conclusion that the second prong of AG ¶ 20(c) is inapplicable to her situation was erroneous. She cites her enrollment in the DMP as evidence that her debt problems are being resolved or are under control. Given the lack of any record of payments by Applicant under the DMP, the Judge’s conclusion that there is insufficient evidence for a determination that her financial problems are under control is reasonable. Applicant also states her belief that the Judge overlooked documentary evidence she submitted regarding the dates of implementation of the DMP. A Judge is presumed to have considered all the evidence in the record unless he specifically states otherwise. See, e.g., ISCR Case No. 07-00196 at 3 (App. Bd. Feb. 20, 2009). Applicant fails to rebut this presumption. Moreover, in his findings of fact, the Judge specifically mentions the dates on which Applicant signed up for the plan, and the dates on which the first payments were due. Applicant states that she disagrees with the Judge’s conclusion that she has not taken significant actions to implement a plan to settle her debts. The Judge acknowledges that Applicant has established a plan, but a review of the totality of his conclusions indicates that the principal component of his analysis is his noting of Applicant’s lack of payments under the DMP. Given this evidence, the Judge’s conclusion is sustainable. 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. 06-17409 at 3 (App. Bd. Oct. 12, 2007). 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. See, e.g., ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007). 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 ultimate unfavorable security clearance decision 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: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board