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ISCR Case 14-01702.a1 — CASE

ISCR Case 14-01702.a1denied

Case Headnote

ISCR Case No. 14-01702.a1

Dec 23, 2015· Hon. Jeffrey D. Billett· appeal

Summary

A defense contractor's security clearance was denied under Guideline F (Financial Considerations) due to unresolved delinquent debts and a bankruptcy. The applicant, representing himself, failed to provide adequate documentation to mitigate these financial concerns.

Specifically, the applicant did not offer sufficient evidence to corroborate claims that debts had been resolved. Furthermore, the financial problems were not demonstrated to have arisen from circumstances beyond the applicant's control. The applicant also failed to respond adequately to the Department Counsel's notice requesting evidence to address the security concerns.

Given these unmitigated issues, the disqualifying conditions F.3 and F.4 were sustained, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts
F.4raisedBankruptcy

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 issuedJun 16, 2014
Answer filed—
Hearing heldOct 13, 2015
Decision dateDec 23, 2015

Cite For

Insufficient Evidence to Mitigate Financial Concerns Under Guideline F
Importance of Timely and Reasonable Steps to Protect Rights Under the Directive
Pro Se Applicants Are Expected to Take Reasonable Steps to Address Security Concerns

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 who was denied a security clearance due to financial considerations under Guideline F. The applicant argued that the Administrative Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding that the applicant had not provided sufficient evidence to mitigate the concerns regarding his delinquent debts.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowShari Dam — denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline F

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 that the applicant had received adequate notice of his rights and obligations under the Directive. The applicant failed to provide sufficient evidence to mitigate the security concerns related to his financial issues.

Standard of review applied

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

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 received notice sufficient to apprise a reasonable person as to the kind of evidence that might mitigate the concerns arising from his delinquent debts and of his responsibility to provide such evidence. Although pro se applicants are not expected to act like lawyers, they are expected to take timely and reasonable steps to protect their rights under the Directive. Adverse decision affirmed. CASENO: 14-01702.a1 DATE: 12/23/2015 DATE: December 23, 2015 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-01702

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (D0D) declined to grant Applicant a security clearance. On June 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). Applicant requested a decision on the written record. On October 13, 2015, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Shari Dam 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 Applicant has worked for a Defense contractor for about 5 years. He stated that his financial problems were due to a drop in income while he was attending school. He also states that he is “making ‘better financial decisions.’” Decision at 3. In 2013, he hired a law firm to assist him in resolving his debts and improving his credit rating. He provided no documentation confirming that the firm had resolved any of his debts. He did not provide a budget setting forth his income, expenses, and discretionary income. Applicant’s SOR lists a bankruptcy and 11 delinquent debts from between 2007 and 2013. The debts were for a credit card, an automobile repossession, rent, cable services, etc. The Judge found that two debts–the credit card and another debt owed to a bank–had been resolved. She found that the remainder of Applicant’s debts had not been resolved. Despite Applicant’s claims that he had not filed for bankruptcy, the Judge found that he had done so in 2010, based on the contents of a credit report. In the File of Relevant Material (FORM), Department Counsel stated that the information that Applicant had previously submitted in his Answer to the SOR was not sufficient to mitigate the security concerns in his case. Department Counsel stated that a debt having dropped off a credit report due to age was not proof of debt resolution. Applicant submitted no additional documents in response to the FORM.1 Applicant stated that he had received credit counseling through the law firm he had hired. He submitted not evidence of his job performance, duties, character, etc. The Judge’s Analysis The Judge entered favorable findings for the two debts that she found to have been resolved. For the remainder of the SOR allegations, however, she found adversely to Applicant. She stated that Applicant had not provided sufficient documentation to corroborate his claims of debt resolution. She also concluded that Applicant had not shown that his financial problems arose from circumstances outside his control. In the whole-person analysis, the Judge reiterated that Applicant had not provided evidence that would support his contention that a number of his debts had been resolved. She stated that he appears to have relied on the fact that many of his debts have dropped off his credit reports, which she stated was not credible evidence of debt resolution.

DISCUSSION

Applicant’s appeal submission includes evidence from outside the record, much of which post-dates the Decision. We cannot consider new evidence on appeal. Directive ¶ E3.1.29. Noting the Judge’s statement that he had not provided a documentary response to the FORM, he states that he “did not have a full understanding of the circumstances that would affect my current Security Clearance Level[.]” We construe this as an argument that Applicant was not aware of his rights, thereby impairing his receipt of due process. As the Judge stated in the Decision, however, Department Counsel put Applicant on notice that the file as it then existed was not enough to mitigate the concerns arising from Applicant’s debt problems. Department Counsel also advised Applicant of his right to submit a documentary response to the FORM “setting forth objections, rebuttal, extenuation, mitigation, or explanation, as appropriate.” FORM at 2. DOHA sent the FORM to Applicant along with a cover letter, dated June 10, 2015, that provided similar guidance. Applicant also received a copy of the Directive, which includes a detailed description of an applicant’s right to respond to the FORM. Applicant signed a receipt for the package that included the cover letter, FORM, and Directive. Applicant received notice sufficient to apprise a reasonable person as to the kind of evidence that might mitigate the concerns arising from his delinquent debts and of his responsibility to provide such evidence. As the Judge noted, however, Applicant did not respond, save for one document that was already in the record. Although pro se applicants are not expected to act like lawyers, they are expected to take timely and reasonable steps to protect their rights under the Directive. Applicant was not denied reasonable notice of his rights and obligations and was not denied the due process afforded by the Directive. See, e.g., ISCR Case No. 12-02371 at 2-3 (App. Bd. Jun. 30, 2014). Applicant’s brief cites to record evidence concerning, among other things, his having hired a law firm to help resolve this debts. The Judge made findings about this. However, her observation that Applicant had provided no evidence to show what this firm may have done is consistent with the record. Applicant has not rebutted the presumption that the Judge considered all of the evidence. See, e.g., ISCR Case No. 14-06359 at 3 (App. Bd. Nov. 6, 2015). 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: 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 Applicant did submit one document, although it was a copy of one that he had previously submitted in his Answer to the SOR.