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ISCR Case 11-14899.a1 — CASE

ISCR Case 11-14899.a1denied

Case Headnote

ISCR Case No. 11-14899.a1

Apr 15, 2015· Hon. Michael Y. Ra'anan· appeal

Summary

A defense contractor employee was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The applicant's history included multiple unpaid debts, which were identified as a disqualifying condition under Guideline F. The applicant also had a military discharge for misconduct and several traffic offenses, raising concerns about his judgment and reliability, which fell under Guideline E's disqualifying conditions.

While mitigating conditions F.2 and E.3 were considered, they were not sufficient to overcome the identified issues. The applicant failed to demonstrate a good-faith effort to resolve his financial delinquencies.

Ultimately, the judges affirmed the denial, concluding that the applicant's pattern of financial irresponsibility and misconduct indicated significant concerns regarding his judgment and reliability.

Conditions Referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts
E.2raisedCriminal Conduct

Mitigating

F.2rejectedThe Conditions That Resulted in the Financial Problem Were Largely Beyond the Person's ControlThe judge found that the applicant's financial issues were numerous and recent, indicating a lack of responsibility.
E.3rejectedThe Person Has Taken Positive Steps to Reduce or Eliminate the Financial ProblemsThe applicant did not demonstrate a good-faith effort to pay his debts.

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 issuedJul 16, 2014
SOR amendedOct 31, 2014
Hearing heldJan 29, 2015
Decision dateApr 15, 2015

Cite For

Denial of Clearance Due to Financial Delinquencies Under Guideline F
Impact of Personal Conduct on Security Clearance Under Guideline E
Importance of Demonstrating Good-faith Efforts to Resolve 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 seeking a security clearance after being denied due to concerns under Guideline F (Financial Considerations) and Guideline E (Personal Conduct). The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error and that the applicant's circumstances raised legitimate concerns about his judgment and reliability.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowLeRoy F. Foreman — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

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 Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for the decision, including the consideration of mitigating conditions and whole-person factors. The Board concluded that the Judge's findings were not arbitrary or capricious and that the adverse decision was consistent with national security interests.

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 Ra’anan — Chair
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 failed to rebut the presumption that the Judge considered all of the evidence. Applicant’s circumstances were sufficient to raise Guideline E concerns about his judgment and reliability. Adverse decision affirmed. CASE NO: 11-14899.a1 DATE: 04/15/2015 DATE: April 15, 2015 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-14899

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On July 16, 2014, 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). On October 31, 2014, DoD amended the SOR to add allegations under Guideline E (Personal Conduct). Applicant requested a hearing. On January 29, 2015, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge LeRoy F. Foreman denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact An employee of a Defense contractor, Applicant has held a security clearance since 2003. He served for over two years in the U.S. military but was administratively discharged in 2003 for “a pattern of misconduct,” receiving a General Discharged Under Honorable Conditions. Decision at 2. The offenses that formed the basis of the discharge were failure to go to his appointed place of duty, dereliction of duty, and disobedience. In addition, Applicant had been accused of computer tampering and hacking, although this was not included in the discharge action. Applicant married in December 2002 and divorced three years later. He and his wife had a son. Applicant remarried in 2013 and has a son by his current wife. He has a son from another relationship as well. He has four delinquent debts, for cell phone services, child support (two allegations), and a car loan. Applicant has considered debt consolidation, but he has not sought or received financial counseling. Between May 2004 and December 2013, Applicant was arrested or cited for numerous offenses. These included several traffic offenses, such as speeding, failure to obey a signal, etc. He also had a DUI. The last offense alleged in the SOR, failure to obey a highway sign, resulted in two years of unsupervised probation. In addition, in August 2014, Applicant was cited for failing to come to a complete stop at a stop sign. This was not alleged in the SOR, but the Judge stated that he was considering this offense as bearing on mitigation, rehabilitation, and the whole-person analysis, etc. The Judge’s Analysis The Judge concluded that Applicant had not mitigated the Guideline F concerns in his case. He stated that they were numerous, recent, and were not incurred under circumstances making them unlikely to recur. Although noting Applicant’s divorce and unemployment, the Judge found that Applicant had not acted responsibly. He noted that the child support was being paid through garnishment. The Judge concluded that Applicant had not demonstrated a good-faith effort to pay his debts. Regarding Guideline E, the Judge cleared Applicant of some of the allegations. For example, he found that omissions from Applicant’s clearance application and interrogatory response were not deliberate. However, he concluded that the adverse action during Applicant’s military career, his DUI, and his several traffic offenses constituted a “long chain of incidents reflecting Applicant’s unwillingness to follow rules.” Id. at 10. In the whole-person analysis, the Judge noted that Applicant’s August 2014 traffic offense occurred while he was on probation for the one committed in December 2013.

DISCUSSION

Applicant cites to his having been paying child support and to evidence that he has paid other accounts, as referenced in his clearance interview. He also cites to evidence about his family circumstances and his unemployment. He argues that he has mitigated the concerns arising from his financial delinquencies. Applicant’s argument is not enough to rebut the presumption that the Judge considered all of the evidence in the record or to show that the Judge mis-weighed the evidence. See, e.g., ISCR Case No. 11-09118 at 3 (App. Bd. Mar. 25, 2015). He also challenges the Judge’s description of his Guideline E infractions as a “chain of incidents.” Appeal Brief at 3. He noted a gap of several years that separated his most recent alleged infraction from the one preceding it, arguing that the incidents are not frequent, contrary to the Judge’s finding. We construe this as contending that the incidents cited under Guideline E do not raise security concerns. However, Applicant’s discharge for cause from the military, his DUI, his various traffic offenses, and the probationary status resulting from his December 2013 traffic incident are sufficient to raise questions in a reasonable mind about Applicant’s judgment and reliability. See Directive, Enclosure 2 ¶ 15. Accordingly, we find no reason to disturb the Judge’s conclusion on this matter. Neither do we find a reason to question the Judge’s treatment of the Guideline E mitigating conditions, especially in light of his subsequent offense while on probation.

The Judge examined the relevant data and articulated a satisfactory explanation for the decision, both as to the mitigating conditions and the whole-person factors. 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: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, 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