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ISCR 14-02138.a1: Guideline E security clearance appeal, denied (2016) · CASE

ISCR Case 14-02138.a1denied

Case headnote

ISCR Case No. 14-02138.a1

Feb 11, 2016· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from several delinquent debts, which the applicant attributed to unemployment and medical bills.

However, the judge found insufficient evidence to mitigate these financial concerns. Specifically, the applicant's claims that unemployment caused the debts were undermined by evidence showing some debts were incurred prior to his period of unemployment.

Consequently, the applicant failed to provide adequate mitigation for the disqualifying conditions raised under AG ¶ 20 and AG ¶ 15, leading to the denial of the security clearance.

Conditions referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

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 issuedNov 12, 2014
Answer filed—
Hearing heldOct 30, 2015
Decision dateFeb 11, 2016

Cite for

Denial Based on Financial Considerations Under Guideline F
Insufficient Evidence for Mitigation in Financial Cases
The Standard for Granting Security Clearances Related to National Security Interests

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 E and Guideline F. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it sustainable and supported by substantial evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMarc E. Curry denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline 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 sustainable based on the evidence presented and did not mis-weigh the evidence. The Judge articulated satisfactory explanations for the decision regarding mitigating conditions and whole-person factors.

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 Y. 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; Guideline E DIGEST: The Board need not agree with a Judge’s decision to find it sustainable.. Adverse decision affirmed. CASENO: 14-02138.a1 DATE: 02/11/2016 DATE: February 11, 2016 In Re: --------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-02138

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 November 12, 2014, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline E (Personal Conduct) and Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On October 30, 2015, after the hearing, 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. The Judge’s favorable findings under Guideline E are not at issue in this appeal. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant has several delinquent debts for student loans and phone services. He attributes his debts to a six-month period of unemployment and to medical bills due to an accident, although he did not specify the date upon which the accident occurred. He contends that he has paid three of the alleged debts and is making payments on another. Applicant earns about $4,000 after taxes and has an equal amount in savings. He has between $800 and $1,200 in discretionary income. The Judge’s Analysis The Judge noted Applicant’s contention that some of his debts were no longer mentioned on his credit report. However, the Judge stated that this fact alone does not show that the debt had been actually satisfied. He also noted an absence of corroborating evidence for Applicant’s contention that he was making payments on one of the debts. The Judge concluded that Applicant’s presentation was not sufficient to meet his burden of persuasion as to mitigation.

DISCUSSION

Applicant cites to evidence of his job termination that resulted in a period of unemployment, to his hearing testimony, and to evidence regarding the circumstances underlying his debts. He draws our attention to a Fact Finding Report (Applicant Exhibit B), in which his state’s Board of Labor determined that his job termination was not misconduct such as to deny him eligibility for unemployment compensation. He states that the Judge did not give this matter proper weight in evaluating the effect of his unemployment on his financial condition. In fact, the Judge cleared Applicant on an allegation concerning his job termination, and he made findings about Applicant’s unemployment. However, he also found that Applicant had incurred his debts before he lost his job. These finding are consistent with the Judge’s overall adverse decision. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. Neither has he shown that the Judge mis-weighed the evidence. See, e.g., ISCR Case No. 14-06093 at 3 (App. Bd. Dec. 4, 2015). Applicant cites to a Hearing Office decision which he believes supports his case for a clearance. Each case must be decided upon its own merits, and Hearing Office decisions are not binding on other Hearing Office Judges or on the Appeal Board. See, e.g., ISCR Case No. 14-03747 at 3 (App. Bd. Nov. 13, 2015). 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. We need not agree with a Judge’s decision to find it sustainable. See, e.g., ISCR Case No. 10-03301 at 2 (App. Bd. Jun. 7, 2012). “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 Y. Ra’anan Michael Y. 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