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ISCR Case 12-09921.a1 — CASE

ISCR Case 12-09921.a1denied

Case Headnote

ISCR Case No. 12-09921.a1

Dec 9, 2015· Hon. Michael Y. Ra'anan· appeal

Summary

The applicant, represented by counsel, was denied a security clearance under Guideline F (Financial Considerations) due to unresolved financial issues. The primary concern was an outstanding mortgage debt exceeding $182,000, which triggered Disqualifying Condition F.1.

The denial was based on several factors. The applicant failed to provide sufficient evidence of overall financial stability. Furthermore, the applicant's arguments regarding financial inability were not found persuasive, particularly given his demonstrated capacity to make payments on other debts.

Crucially, the applicant's lack of action concerning the significant mortgage debt was determined to be ongoing and voluntary. The applicant did not effectively rebut the presumption that all evidence was considered, leading to the affirmation of the adverse decision and the denial of the security clearance.

Conditions Referenced

Disqualifying

F.1raisedFinancial 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 issuedMar 14, 2015
Answer filed—
Hearing heldSep 23, 2015
Decision dateDec 9, 2015

Cite For

Affirmation of Adverse Decision Due to Unresolved Financial Issues
Importance of Demonstrating Financial Stability in Clearance Determinations
Presumption That All Evidence Was Considered in the Decision-making 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 was from a denial of a security clearance based on financial considerations under Guideline F. The applicant argued that the Judge failed to consider all evidence and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationAttorney

Judge belowPhilip S. Howe — 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 contends that the Judge failed to consider all of the evidence in the record.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argues 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 considered all relevant evidence and articulated a satisfactory explanation for the decision, which was sustainable on the record.

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 has not rebutted the presumption that the Judge considered all the evidence. Adverse decision affirmed. CASENO: 12-09921.a1 DATE: 12/09/2015 DATE: December 9, 2015 In Re: Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-09921

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On March 14, 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 September 23, 2015, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Philip S. Howe 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 considered all of the evidence in the record and 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 Applicant and his wife divorced in 2011, after which Applicant was not able to pay the mortgages on a house that they owned. The house was financed with two mortgages. He had a short sale of the house the following January. However, even after this sale, they owed over $182,000. Applicant attempted to settle the debt for $10,000, to be paid in monthly installments each of $75 from both himself and his ex-wife. The lender rejected this offer, requiring payment of at least 25% of the debt, which would be $45,000. Applicant claimed that he could not pay this much. Applicant provided no information about his salary or assets, how much of a down payment he had made on the house, or other relevant financial information. Applicant’s credit reports show that he owes other debts and pays them. For example, he purchased a car for $36,000 and has about $42,000 in student loans. He also has about $11,000 in credit card debt. “Applicant continued to spend money while he claimed he was unable to repay his mortgage.” Decision at 3. The Judge’s Analysis The Judge stated that Applicant had not provided information about his income in 2012 or at the present, nor did he disclose the sale price of his house. He stated that, if Applicant were able to make payments on a $36,000 car he should be able to make the payments needed to meet the settlement amount required by the lender. He stated that Applicant’s claims that he cannot pay his mortgage are not persuasive evidence of financial inability. In the whole-person analysis, the Judge stated that Applicant had taken no action on the mortgage debt since 2012, leaving him vulnerable to pressure, exploitation, or duress. His lack of action on this debt is ongoing and voluntary.

DISCUSSION

Applicant contends that the Judge failed to consider all of the evidence in the record. Among other things, he argues that the Judge did not consider that Applicant’s divorce precipitated his financial problems and that he had made efforts to resolve the debts. The Judge made findings about Applicant’s divorce and about his offer to settle the debt. Given the record that was before him, the Judge’s treatment of this evidence is supportable. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 14-06359 at 3 (App. Bd. Nov. 6, 2015). Applicant has cited to some Hearing Office cases that, he argues, lend force to his effort to obtain a favorable result. We have considered these cases as persuasive authority. However, Hearing Office cases are not binding on us or on other Hearing Office Judges. See, e.g., ISCR Case No. 14-03747 at 3 (App. Bd. Nov. 13, 2015). The Judge examined the relevant evidence 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board