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ISCR 14-04289.a1: Guideline F security clearance appeal, denied (2015) · CASE

ISCR Case 14-04289.a1denied

Case headnote

ISCR Case No. 14-04289.a1

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

Summary

A security clearance was denied to an applicant primarily due to financial considerations under Guideline F, despite favorable findings regarding drug involvement under Guideline H. The applicant, representing himself, faced disqualifying condition F.1, which addresses an inability or unwillingness to satisfy debts.

While mitigating condition F.3 (good-faith effort to resolve debts) and H.1 (drug involvement was not recent or frequent) were considered, the applicant failed to provide evidence of debt resolution or bankruptcy filing. He also did not submit proof of financial counseling. His request for additional time to resolve his debts was denied, as the board lacks authority to grant interim clearances.

Ultimately, the appeal board affirmed the denial, concluding that the judge's decision was not arbitrary or capricious, as the applicant did not demonstrate responsible action regarding his debts.

Conditions referenced

Disqualifying

F.1raisedFinancial Considerations

Mitigating

F.3notedFinancial Considerations
H.1appliedDrug Involvement

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 issuedOct 10, 2014
Answer filed—
Hearing heldJun 30, 2015
Decision dateSep 9, 2015

Cite for

Denial of Security Clearance Based on Financial Concerns Under Guideline F
Affirmation of the Judge's Decision Not Being Arbitrary or Capricious
Lack of Evidence for Debt Resolution Impacting Clearance Eligibility

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 based on financial considerations and drug involvement. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the denial, finding that the Judge's decision was supported by substantial evidence and that the applicant's arguments did not undermine the Judge's conclusions.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowClaude R. Heiny denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline H

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argued that the Judge weighed the evidence in a manner that 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 articulated a satisfactory explanation for the denial of the security clearance. The Board concluded that the Judge did not weigh the evidence in an arbitrary or capricious manner.

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: We have no authority to grant interim, conditional or probationary clearances. Adverse decision affirmed. CASENO: 14-04289.a1 DATE: 09/09/2015 DATE: September 9, 2015 In Re: ----------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-04289

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 October 10, 2014, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) and Guideline H (Drug Involvement) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On June 30, 2015, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Claude R. Heiny 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 weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guideline H are not at issue in this appeal. Consistent with the following, we affirm. The Judge’s Decision The Judge made the following findings that are pertinent to the issue raised on appeal. Applicant works for a Defense contractor. In the mid-2000s, he entered into a partnership for the purpose of investing in real estate. A subsequent hurricane resulted in an increase in insurance rates, and the crash of the housing market impaired Applicant’s business fortunes. He sold two of the lots that he had purchased and borrowed from his individual retirement account in order to make his mortgage payments. Applicant’s partner also became unable to invest in the partnership. Applicant states that, in July 2013, he filed for bankruptcy protection. A letter from his lawyer stated that they expected to file in late 2014 and, in response to the File of Relevant Materiel, another such letter stated that they would file in mid-2015. Applicant submitted no filing documents. The Judge’s Analysis As stated above, the Judge entered favorable findings regarding the Guideline H allegations. In arriving at the opposite conclusion for Guideline F, he stated that Applicant had presented no evidence of having paid his debts or of having filed for bankruptcy protection. Neither had he submitted evidence of financial counseling. The Judge noted that circumstances outside Applicant’s control affected his finances. However, he concluded that Applicant had failed to show responsible action in regard to his debts.

DISCUSSION

Applicant cites to evidence that he has a steady work history and problem-solving ability. He argues that his job requires him to enforce access guidelines, which he cites as proof of his security-worthiness. This argument is not enough to undermine the Judge’s weighing of the evidence. The presence of some mitigating evidence does not compel a favorable decision or show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-00480 at 4 (App. Bd. Jul. 2, 2015). Applicant’s argument is not sufficient to rebut the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 14-00597 at 3 (App. Bd. Jul. 16, 2015). Applicant asks that he be granted an additional six to twelve months to resolve this debt problems. We do not have authority to grant an interim, conditional, or probationary clearance. See, e.g., ISCR Case No. 10-06975 at 2 (App. Bd. Apr. 19, 2012). Applicant notes that because of his loss of a clearance he is no longer working. The Directive does not permit us to consider the adverse impact of an unfavorable decision. See, e.g., ISCR Case No. 14-01443 at 2 (App. Bd. Apr. 28, 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board