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ISCR Case 12-01325.a1 — CASE

ISCR Case 12-01325.a1denied

Case Headnote

ISCR Case No. 12-01325.a1

Dec 11, 2015· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, a high school graduate, was denied under Guideline F (Financial Considerations) due to a history of financial difficulties, including unresolved delinquent debts and a prior bankruptcy. The decision cited Disqualifying Condition F.1, which addresses an inability or unwillingness to satisfy debts.

While Mitigating Conditions F.2 and F.3, concerning circumstances largely beyond the applicant's control and good-faith efforts to resolve debts, were considered, they were not sufficient to overcome the security concerns. The applicant failed to provide adequate evidence to mitigate her financial issues or demonstrate responsible action regarding her obligations.

Specifically, the applicant did not sufficiently document claims about disputed debts or actions taken to resolve her financial problems. Despite challenging circumstances, the lack of demonstrated responsibility and insufficient evidence led to the denial of her appeal.

Conditions Referenced

Disqualifying

F.1raisedFinancial Considerations

Mitigating

F.2rejectedMitigating ConditionsThe applicant did not provide evidence of responsible action regarding her debts.
F.3rejectedMitigating ConditionsThe applicant did not substantiate her claims of disputed debts.

Key Rule Quoted

“Failure to meet financial obligations 'may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information.'”
— Directive, Enclosure 2 ¶ 18.

Procedural Posture

SOR issuedJul 28, 2014
Answer filed—
Hearing heldSep 30, 2015
Decision dateDec 11, 2015

Cite For

Insufficient Evidence to Mitigate Financial Issues Under Guideline F
Impact of Financial Obligations on Reliability and Trustworthiness
Responsibility of the Applicant to Present Evidence in Rebuttal or Mitigation.

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 under Guideline F. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding that the applicant did not provide sufficient evidence to mitigate the financial concerns raised against her.

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 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 that the applicant failed to meet her burden of persuasion regarding mitigation. The Judge's analysis was not arbitrary or capricious, and the applicant did not provide sufficient evidence to overturn the decision.

Standard of review applied

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

Appeal Board panel

Michael Ra’anan — Chair
Jeffrey D. Billett
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 contends that the record evidence is dated. It is an applicant’s responsibility to present evidence in rebuttal, explanation, extenuation, or mitigation. If Applicant believed that the evidence contained in the FORM was incomplete, it was her responsibility to supplement it. Adverse decision affirmed. CASENO: 12-01325.a1 DATE: 12/11/2015 DATE: December 11, 2015 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-01325

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 July 28, 2014, DoD issued a statement of reasons (SOR)1 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 a decision on the written record. On September 30, 2015, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Marc E. Curry 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 Finding of Fact Applicant is separated from her husband. She is a high school graduate. She enjoys an excellent reputation for the quality of her work performance, her adherence to security policies, and her handling of classified information. Applicant experienced a period of unemployment in 2003, due to her having been laid off from a job. At the time of this job loss, she was married to a previous husband, whom she described as “a spendthrift ‘drunk’” who stole from her and pawned many of her personal belongings. Decision at 2. Two years later she filed for Chapter 7 bankruptcy protection, resulting in the discharge of approximately $74,000 of debt. After divorcing her previous husband, Applicant got a job that paid only half of what she had made before. She moved in with a roommate in order to conserve money, but this person turned out to be “a scofflaw who opened credit cards in her name and ‘pawned everything [she] didn’t have locked down.’” Id. Applicant’s delinquent debts include an auto loan in the amount of nearly $12,000. Applicant had become unable to make her car payments, so she sought a voluntary repossession. The record does not state whether or not this actually occurred. The creditor charged off this debt. Applicant’s debts also include credit card accounts totaling about $3,600. She claims that these accounts were opened by her roommate, one of which she paid and another was removed from her credit report. She provided no documentary evidence in support of these claims. The Judge’s Analysis The Judge noted Applicant’s unemployment, as well as her problems with her ex-husband and her roommate, which he characterized as circumstances that were beyond her control.2 He stated, however, that Applicant had provided no evidence that showed responsible action in regard to her debts or that documented the basis for her dispute of the credit card accounts.3 She provided no information as to anything she had done to address her financial problems. In the whole-person analysis, the Judge reiterated his findings about the circumstances underlying Applicant’s financial problems, concluding that she had not provided evidence of reasonable steps to resolve them.

DISCUSSION

Applicant’s brief cites to evidence not contained in the record, including as attachments a number of documents that post-date the Judge’s decision. We cannot consider new evidence on appeal. Directive ¶ E3.1.29. Applicant contends that the record evidence is dated and that the Judge’s analysis did not take into account the true state of her finances. However, it is an applicant’s responsibility to present evidence in rebuttal, explanation, extenuation, or mitigation. Directive ¶ E3.1.15. Applicant presented evidence in response to the File of Relevant Material (FORM). If she believed that the evidence contained in the FORM was incomplete, it was her responsibility to provide it. The record shows that Applicant received notice sufficient to apprise a reasonable person of her rights and responsibilities regarding the presentation of evidence as well as of the burden of persuasion. See, for example, FORM at 2, containing Department Counsel’s notice to Applicant of her right to submit a documentary response. Applicant had received similar notice in an earlier letter from DOHA, along with a copy of the Directive. To the extent that Applicant is contending that the Judge should have obtained a more recent credit report, a Judge has no authority to conduct further investigation into an applicant’s case. To do so would conflict with his or her responsibility to serve as an impartial fact-finder. See, e.g., ISCR Case No. 14-03062 at 3 (App. Bd. Sep. 11, 2015). Applicant’s brief cites to record evidence of the difficulties Applicant encountered with her ex-husband and her roommate. She also cites to her efforts at debt resolution. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 12-08412 at 2 (App. Bd. Sep. 11, 2015). Applicant states that if she does not receive a favorable decision she will lose her job. The Directive does not permit us to consider the impact of an adverse decision. See ISCR Case No. 11-13180 at 3 (App. Bd. Aug. 21, 2013). 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 Judge’s conclusion that Applicant did not submit sufficient evidence to meet her burden of persuasion as to mitigation is consistent with the record that was before him. See, e.g., ISCR Case No. 14-00321 at 3 (App. Bd. Jun. 5, 2015) (Judge’s adverse decision was supported by the extent of the applicant’s debts and by a paucity of evidence in mitigation). Failure to meet financial obligations “may indicate poor self- control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information.” Directive, Enclosure 2 ¶ 18. 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: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board

FOOTNOTES

1 The SOR has a different case number from the one on the Decision. The Judge stated that the case number listed on the SOR is incorrect and that the correct number is the one presented on the Decision. Decision at 1, note 1. We have used the number on the Judge’s Decision.

2 See Directive, Enclosure 2 ¶ 20(b): “the conditions that resulted in the financial problem were largely beyond the persons’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[.]”

3 See Directive, Enclosure 2 ¶ 20(e): “the individual has a reasonable basis to dispute the legitimacy of the past- due debt which is the cause of the problem and provides documented proof to substantiate the basis of the dispute or provides evidence of actions to resolve the issue[.]”