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ISCR Case 14-05920.a1 — CASE

ISCR Case 14-05920.a1denied

Case Headnote

ISCR Case No. 14-05920.a1

Jan 8, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied clearance under Guideline F (Financial Considerations) due to unmitigated financial issues. These issues arose from a period of unemployment and a divorce. The applicant failed to provide sufficient corroborating evidence to demonstrate that he had adequately addressed the resulting debts.

Specifically, the disqualifying condition F.1 was raised, indicating a history of not meeting financial obligations. The applicant's claims of resolving these debts were not supported by verifiable documentation.

The appeal board affirmed the denial, concluding that the applicant did not successfully mitigate the financial concerns. Furthermore, the board found no evidence to support the applicant's assertion that his due process rights were violated during the proceedings.

Conditions Referenced

Disqualifying

F.1raisedInability to Satisfy 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 issuedJan 22, 2015
Answer filed—Applicant requested a decision on the written record.
Hearing heldOct 30, 2015Decision based on written record.
Decision dateJan 8, 2016

Cite For

Failure to Mitigate Financial Issues Under Guideline F
Due Process Considerations in Security Clearance Cases
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 who was denied based on financial considerations under Guideline F. The applicant argued he was denied due process and that the judge's decision was arbitrary. The Board affirmed the judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMarc E. Curry — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Due-process / fairness — raised by the applicantRejected
Applicant asserted that he was denied due process because he believed his security officer submitted his documentation.
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 Applicant was not denied due process and that the Judge's decision was supported by substantial evidence and not arbitrary or capricious. The Applicant's claims did not demonstrate harmful error that would warrant overturning the decision.

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. Billet
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’s assertion that he believed his security officer had submitted his documentation does not demonstrate that he was denied due process in light of the record as a whole. Adverse decision affirmed. CASENO: 14-05920.a1 DATE: 01/08/2016 DATE: January 8, 2016 In Re: ----------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-05920

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 January 22, 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 October 30, 2015, after considering the record, 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 issues on appeal: whether he was denied due process 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 In 2005, Applicant and his wife purchased a house for $440,000, financing the purchase through a mortgage. They later took out a home equity line of credit (HELOC). Subsequently, Applicant became unemployed for seven months, and he also divorced. Applicant fell behind on his mortgage payments as well as on other debts. Applicant thought about selling his house but it had depreciated by $200,000 since he bought it. He hired an attorney, who helped him execute a voluntary foreclosure. The foreclosure sale resulted in a deficiency of $160,000. Applicant’s HELOC was not included in this transaction. He negotiated a settlement agreement whereby he will pay $200 a month, though as of the date of the SOR he had not received a copy of this agreement. Applicant disputes one of the SOR debts and claims that he has paid off others. He provided no corroboration for this assertion. The Judge’s Analysis The Judge concluded that Applicant’s debts resulted from circumstances beyond his control–unemployment, divorce, and his inability to sell his house. He noted that Applicant consulted with an attorney in an effort to resolve this debts. However, he stated that Applicant had provided no additional evidence in support of his claims to have been addressing his debts. The Judge concluded, therefore, that Applicant had failed to mitigate the concerns arising from his financial problems.

DISCUSSION

Applicant states that he thought that his facility security officer had submitted all of his documentation. He states that he believed that “the packet I received was the copies of what was to be submitted.” He also states that no one advised him that it was best to present his case at a hearing. Appeal Brief at 1. Applicant’s argument asserts matters from outside the record, which we are generally precluded from considering. Directive ¶ E3.1.29. However, we will consider new evidence insofar as it bears upon questions of jurisdiction or due process. See, e.g., ISCR Case No. 14-00812 at 2 (App. Bd. Jul. 8, 2015). The record contains a copy of a document that DOHA prepared and sent to Applicant in conjunction with the SOR, whereby Applicant made his election as to forum. Applicant checked the block requesting a decision on the written record. This document stated that Applicant would have an opportunity to provide written evidence for the Judge’s consideration. Subsequently, Department Counsel sent Applicant the File of Relevant Material (FORM). The FORM included guidance to Applicant that the record as it then stood was not sufficient to mitigate the concerns in his case. It stated, among other things, that Applicant had 30 days in which to submit a documentary response setting forth objections, rebuttal, extenuation, mitigation, or explanation, as appropriate. If you do not file any objections or submit any additional information within 30 days of receipt of this letter, your case will be assigned to an Administrative Judge for a determination base solely on this FORM. DOHA officials provided similar guidance in a cover letter, dated May 20, 2015, that accompanied the FORM. This letter advised that Applicant could submit “any material you wish the Administrative Judge to consider” within 30 days of receipt. DOHA also provided Applicant with a copy of the Directive, which contains a detailed explanation of an applicant’s rights and responsibilities. Under the circumstances, Applicant’s failure to have provided a written response to the FORM cannot fairly be attributed to an absence of clear guidance regarding his rights. Neither has he provided a reason to believe that he submitted documents that did not make it into the record.1 Beyond this, we are unable to determine with any degree of certitude exactly what error that Applicant is raising. Therefore, any argument beyond those addressed above fails for lack of specificity. See, e.g., ISCR Case No. 09-06691 at 3 (App. Bd. May 16, 2011). Although Applicant may now be dissatisfied with his choice of forum, there is nothing in the record or in his appeal brief that would persuade a reasonable person that his election of a decision on the written record was other than knowing and intelligent. Applicant was not denied the due process afforded by the Directive. Applicant’s brief draws our attention to documents that were included in the record. Applicant’s brief is not enough to rebut the presumption that the Judge considered all of the evidence. See, e.g., ISCR Case No. 14-06093 at 3 (App. Bd. Dec. 4, 2015). Neither is it sufficient to show that the Judge mis-weighed the evidence. 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. Billet Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board

FOOTNOTES

1 Some of the documents that Applicant has attached to his appeal brief post-date his deadline to respond to the FORM and, in some cases, the Judge’s Decision itself.