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ISCR Case 12-01601.a1 — CASE

ISCR Case 12-01601.a1denied

Case Headnote

ISCR Case No. 12-01601.a1

Sep 23, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A 46-year-old defense contractor with four children was denied a security clearance under Guideline F, Financial Considerations. The applicant admitted to multiple delinquent debts, which raised security concerns.

While mitigating conditions AG ¶ 21(a) and AG ¶ 21(b) were considered, the applicant did not demonstrate a consistent effort to resolve these debts prior to the Statement of Reasons (SOR) being issued. The judge determined that the applicant's arguments were insufficient to mitigate the security concerns presented by the outstanding financial obligations.

Consequently, the security clearance denial was affirmed on appeal, with the decision primarily resting on the applicant's failure to address the delinquent debts in a consistent and timely manner.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21(a)rejectedThe Behavior Was Not RecentThe applicant only began making payments towards the debts after the SOR was issued.
AG ¶ 21(b)appliedThe Applicant Has a Good-faith Effort to Repay CreditorsWhile applicable, it was not controlling as the applicant failed to establish a consistent history of resolving 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 issuedAug 19, 2015
Answer filed—Applicant requested a decision on the written record.
Hearing heldJun 27, 2016
Decision dateSep 23, 2016Appeal affirmed.

Cite For

Affirmation of Adverse Decision Due to Financial Considerations Under Guideline F
Insufficient Demonstration of Consistent Debt Resolution Efforts
Limitations on New Evidence During Appeal Process

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 a denial of a security clearance based on financial considerations under Guideline F. The applicant argued that the Judge erred in findings of fact and that the decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful error in the Judge's analysis.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMartin H. Mogul — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Erroneous finding of fact — raised by the applicantRejected
Applicant claimed the Judge erred in the findings of fact regarding the number of children and the start date of employment.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Judge's findings of fact or conclusions, affirming that the decision was based on substantial evidence and reasonable inferences drawn from the record.

Standard of review applied

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

Appeal Board panel

Michael Ra’anan — Chair
James E. Moody
James F. Duffy

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: Most of the document Applicant submitted on appeal were not previously submitted to the Judge and the Board is prohibited from receiving or considering them. Adverse decision affirmed. CASENO: 12-01601.a1 DATE: 09/23/2016 DATE: September 23, 2016 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-01601

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 19, 2015, 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 a decision on the written record. On June 27, 2016, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Martin H. Mogul 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 the Judge erred in making findings of fact and whether the Judge’s decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant is 46 years old, married, and has four children. He earned a bachelor’s degree in 1994. Since 2010, he has been employed by a defense contractor. In his security clearance application, he explained that he encountered difficultly paying bills in 2008 after being laid off from a second job due to the company’s bankruptcy. He gave no explanation for why he did not begin attempting to resolve the debts until the issuance of the SOR. Applicant admitted each of the five delinquent debts alleged in the SOR. For the debt in SOR ¶ 1.a for about $500, Applicant wrote in his Response to Department Counsel’s File of Relevant Material (FORM) that the debt was paid off. The creditor agreed to accept three monthly payments of about $100 to settle the debt. A document showed the creditor made arrangements with Applicant to debit electronically about $100 from his account in September 2015 for this debt. For the 2009 judgment in SOR ¶ 1.bfor about $14,000, Applicant indicated that, at the time he answered the SOR, he was unable to negotiate a settlement. In his Response to the FORM, he provided documents showing his wages were being garnished biweekly for the next six months for this debt and about $350 was garnished from his pay at the end of November 2015. No evidence was presented to establish the total amount deducted from his pay or how much is still owed on that debt. For the debts in SOR ¶¶ 1.c, 1.b, and 1.cfor about $2,500, $5,600, and $3600, Applicant wrote in his Response to the FORM that he is currently on a schedule to repay between $150 and $190 a month on each debt until it is resolved. He provided proof of payments toward those debts from September through November 2015. The Judge’s Analysis The Judge found Applicant did not act responsibly because, even though he has been employed by his current employer since 2010, he only began making payments towards the debts after the SOR was issued. The Judge also concluded that, while the mitigation condition concerning the initiation of a good-faith effort to repay the creditors was applicable, it was not controlling because Applicant must establish a consistent history of continuing to resolve his debts.

DISCUSSION

In the appeal brief, Applicant provided character reference letters and documents showing payments on, or settlement of, various debts. Most of those documents, however, were not previously submitted to the Judge and constitute new evidence that the Appeal Board is prohibited from receiving or considering. Directive ¶ E3.1.29. Applicant claims the Judge erred in the findings of fact. For example, he states that he has six children (instead of four) and started working for his current employer in 2012 (instead of 2010). In his security clearance application, however, Applicant listed that he had four children and indicated he started working for his employer in 2010. He failed to establish that the Judge erred in the findings of fact. Our review reveals the Judge’s material findings are based upon substantial evidence or constitute reasonable inferences or conclusions that could be drawn from the record evidence. See, e.g., ISCR Case No. 12-03420 at 3 (App. Bd. July 25, 2014). Applicant also argues that he mitigated the security concerns arising from his debts. His arguments are not sufficient to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-06634 at 2 (App. Bd. Apr. 28, 2016).

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: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed; James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board