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ISCR Case 14-06338.a1 — CASE

ISCR Case 14-06338.a1denied

Case Headnote

ISCR Case No. 14-06338.a1

Jun 24, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, represented by counsel, was denied a security clearance under Guideline F (Financial Considerations) due to issues with delinquent student loans. The judge identified disqualifying condition F.1, noting a lack of evidence demonstrating responsible conduct regarding these debts. Specifically, the applicant failed to provide corroboration for claims of making regular payments or arranging forbearance on the loans.

Despite the applicant's assertions, the evidence presented did not substantiate these claims, leading to adverse findings. While mitigating condition F.2 was considered, it was not sufficient to overcome the concerns raised by the uncorroborated financial history.

The appeal board affirmed the denial, concluding that any alleged errors by the judge did not impact the final decision. The denial was ultimately based on the insufficient evidence of responsible financial management concerning the delinquent student loans.

Conditions Referenced

Disqualifying

F.1raisedFinancial Considerations

Mitigating

F.2rejectedFinancial ConsiderationsThe applicant did not demonstrate responsible action regarding her 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 issuedFeb 5, 2015
Answer filed—
Hearing heldApr 5, 2016Decision on the written record.
Decision dateJun 24, 2016Appeal affirmed.

Cite For

Insufficient Evidence of Responsible Conduct Under Guideline F
Affirmation of Adverse Findings Related to Delinquent Debts
Harmless Error Doctrine in Security Clearance Decisions

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 brought by the applicant after the Administrative Judge denied her request for a security clearance based on financial considerations. The applicant argued that the Judge failed to consider significant evidence and that the whole-person analysis was erroneous. The Board affirmed the decision, finding that any alleged errors were harmless and did not affect the outcome.

Appealed bythe applicant

Applicant representationAttorney

Judge belowCarol G. Ricciardello — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge failed to consider or address significant record evidence, impairing the sufficiency of her findings of fact.
Whole-person analysis — raised by the applicantRejected
The Judge's whole-person analysis was erroneous.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that even if the Judge made the alleged errors, they did not likely affect the outcome of the case due to a lack of mitigating evidence regarding responsible conduct after the compromise of the applicant's credit card.

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
James E. Moody
Catherine M. Engstrom

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: Even if the Judge made the errors that Applicant has alleged, they did not likely exert an effect on the outcome of the case. Her decision was based upon a paucity of mitigating evidence regarding responsible conduct after the compromise of her credit card, which is sustainable. Adverse decision affirmed. CASENO: 14-06338.a1 DATE: 06/24/2016 DATE: June 24, 2016 In Re: ---------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-06338

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Dennis J. Sysko, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On February 5, 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 April 5, 2016, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Carol G. Ricciardello 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 failed to consider or address significant record evidence, thereby impairing the sufficiency of her findings of fact, and whether the Judge’s whole-person analysis was erroneous. Consistent with the following, we affirm. The Judge’s Findings of Fact The Judge made the following findings pertinent to the issues raised on appeal: Applicant has worked for Federal contractors since 2002, except for two months in 2008 in which she was unemployed. Her SOR lists several delinquent debts, most of which the Judge resolved in her favor. However, for three of them–all student loans–the Judge entered adverse findings. She did not provide corroboration for her claim that she had applied for forbearance or that the request had been approved. She stated that her debit card had been compromised and that she did not switch the automatic payments to the replacement card. She provided a document that showed that she had made a one-time payment of $100 toward satisfying her student loan accounts. This document showed that two of the student loans–totaling over $14,000–had been consolidated into one payment. There is no evidence that Applicant had arranged an automatic payment for this debt. Applicant did not provide evidence to show that the remaining student loan, in the amount of a little over $570, had been consolidated with the other two. The Judge’s Analysis The Judge’s adverse findings were based upon the three student loans discussed above. The Judge stated that Applicant had failed to submit corroboration for her claims (1) that she was paying the loans until 2013; (2) that she began paying them when she learned they were in collection; (3) that they are in forbearance; or (4) that she is making regular payments on them. Accordingly, the Judge concluded that Applicant had not demonstrated responsible action in regard to her debts. In the whole-person analysis, the Judge reiterated her finding that Applicant had not corroborated her claims regarding the student loans.

DISCUSSION

Applicant challenges the Judge’s finding that she did not submit evidence showing that the $570 loan had been consolidated, citing to entries in her credit reports to the effect that this debt has been closed or transferred. She also challenges the finding that she had provided no evidence in support of her claim that she had made student loan payments up until 2013, again citing to entries in her credit reports, as well as to a set of DOHA interrogatories from 2003 which show some payment activity on her student loans. She argues that the Judge’s decision is defective insofar as she does not discuss the cited evidence. A Judge is not required to discuss every piece of evidence in the record, which is a practical impossibility. See, e.g., ISCR Case No. 14-02158 at 3 (App. Bd. Mar. 21, 2016). Moreover, the credit reports do not unequivocally demonstrate that the small student loan had been consolidated with the others or that Applicant had actually been paying her student loans before 2013. Regarding the evidence from the 2003 interrogatories, even if they show some payment in that year, it would not undermine the challenged finding. A statement in a Decision that Applicant had not paid debts prior to 2013 is not seriously undermined by showing that she had made some payments ten years previously. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record, nor has she shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-05795 at 2, 3 (App. Bd. Apr. 26, 2016). Even if the Judge made the errors that Applicant has alleged, they did not likely exert an effect on the outcome of the case. Her decision was based upon a paucity of mitigating evidence regarding responsible conduct after the compromise of her credit card, which is sustainable, based upon the record that was before her. Therefore, any errors in the Decision are harmless. See, e.g., ISCR Case No. 14-03601 at 3 (App. Bd. Jul. 1, 2015). To the extent that Applicant has challenged the sufficiency of the Judge’s findings, we conclude that her material findings satisfy the requirements of the Directive. Directive ¶ E3.1.32.1. Moreover, we conclude that the Judge’s whole person analysis complies with the requirements of Directive ¶ 6.3, in that the Judge considered the totality of the evidence in reaching her decision. See, e.g., ISCR Case No. 15-00424 at 2-3 (App. Bd. Apr. 20, 2016). 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. 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: Catherine M. Ensgtrom Catherine M. Engstrom Administrative Judge Member, Appeal Board