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ISCR Case 11-12885.a1 — CASE

ISCR Case 11-12885.a1denied

Case Headnote

ISCR Case No. 11-12885.a1

Sep 17, 2013· Hon. Jeffrey D. Billett· appeal

Summary

A defense contractor's security clearance was denied under Guideline F, Financial Considerations, due to a history of unresolved financial issues. The applicant had several delinquent debts, including state tax liens and an automobile repossession.

The denial was further supported by the applicant's failure to provide corroborating evidence for claims of repayment. Additionally, the applicant did not respond to the File of Relevant Material, which limited the evidence available to support any mitigation claims.

The appeal board affirmed the denial, finding no due process violations and concluding that the applicant did not meet the burden of persuasion for mitigation under Guideline F. The outcome was a denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

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 issuedFeb 22, 2013
Answer filed—Applicant did not request a hearing.
Hearing held—Processed on the written record.
Decision dateSep 17, 2013

Cite For

Denial of Security Clearance Based on Financial Concerns Under Guideline F
Lack of Corroborating Evidence for Claims of Debt Repayment
Due Process Considerations in Security Clearance 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 an applicant seeking a security clearance who was denied due to financial considerations under Guideline F. The applicant argued he was denied due process and that the Judge's decision was arbitrary. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowArthur E. Marshall, Jr. — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Due-process / fairness — raised by the applicantRejected
Applicant claimed he was denied due process regarding his response to the File of Relevant Material.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Applicant was properly advised of his rights and that the Judge's decision was supported by substantial evidence and not arbitrary or capricious.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Jeffrey D. Billett
William S. Fields
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 was properly advised of his right to submit a response to the File of Relevant Material. Applicant was not denied the due process afforded by the Directive. Adverse decision affirmed. CASE NO: 11-12885.a1 DATE: 09/17/2013 DATE: September 17, 2013 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-12885

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 February 22, 2013, 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). Because Applicant did not request a hearing the case was processed on the written record, in accordance with Directive ¶ E3.1.7. On June 27, 2013, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Arthur E. Marshall, Jr., 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 he was denied due process and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm the Judge’s decision. The Judge’s Findings of Fact Applicant has worked for a Defense contractor since 2009. He served in the Navy from 1982 until 1985, when he was administratively discharged. Applicant is divorced with two grown offspring. Applicant has several delinquent debts, including three state tax liens and an account from an automobile repossession. Applicant advised that many of his debts had been satisfied or were subject to repayment agreements, but he provided no corroboration. He denied responsibility for some of the debts alleged in the SOR, but he provided no evidence that he had ever disputed them. Moreover, in an interview, Applicant attributed three of these challenged debts to a dating service, a telecommunication provider, and utilities bills. The Judge found that Applicant had “provided scant information” that would explain his financial circumstances. Decision at 2. Applicant’s personal financial statement shows a monthly net remainder of about $1,137. Applicant provided no response to the File of Relevant Material (FORM). The Judge’s Analysis The Judge concluded that Applicant’s finances raised security concerns under Guideline F. In evaluating Applicant’s case for mitigation, he noted the absence of corroboration for Applicant’s claims of repayment. He also stated that Applicant had provided no evidence that his problems had resulted from causes outside his control and cited to evidence that Applicant had pursued Chapter 7 bankruptcy in 2003. He concluded that Applicant’s financial problems were ongoing and unresolved and that Applicant had failed to demonstrate responsible action in regard to his debts. In the whole-person analysis, the Judge commented on Applicant’s military discharge, his family circumstances, and the paucity of evidence showing the reason for Applicant’s financial problems and/or his efforts to resolve or dispute them. The Judge concluded that, in light of this paucity of evidence, Applicant had failed to meet his burden of persuasion as to mitigation.

DISCUSSION

Applicant cites to references in the Decision to his failure to respond to the FORM. He states that he did not have time to reply, because the FORM was sent to his employer’s corporate office in the U.S. and from there to Applicant’s home in Europe, where he was performing his duties. He argues that the paucity of evidence in his case was due to the “short turnaround” time he had in which to prepare his response. As stated above, Applicant did not request a hearing. Accordingly, his case was processed by means of the written record. DOHA mailed Applicant a copy of the FORM on April 18, 2013. An accompanying letter advised Applicant that he had 30 days from receipt to submit objections or additional information for the Judge’s consideration. This advice complied with Directive ¶ E3.1.7. The letter advised Applicant that if he did not respond, his case would be assigned to the Judge for a decision based solely on the FORM. DOHA also provided Applicant a copy of the Directive. Applicant acknowledged receipt of the FORM on May 6, 2013. Applicant neither responded to the FORM nor requested an extension of time in which to do so. Under the circumstances, there is no reason to believe that Applicant was denied his full thirty days in which to respond or that he was not properly advised of his rights. There is no basis in the record to conclude that Applicant was denied the due process afforded by the Directive. See, e.g., ISCR Case No. 10-03743 at 2 (App. Bd. Jun. 24, 2011). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The 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 Decision is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board