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ISCR Case 15-02156.a1 — CASE

ISCR Case 15-02156.a1denied

Case Headnote

ISCR Case No. 15-02156.a1

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

Summary

A long-term engineer and veteran was denied a security clearance under Guideline F (Financial Considerations) due to unresolved financial issues. The applicant's financial history included multiple delinquent debts and a failure to file tax returns.

The denial was based on several disqualifying conditions. The applicant failed to provide corroborating evidence for claims of submitted documentation regarding his financial situation. Additionally, the applicant did not respond to the File of Relevant Material (FORM) within the required timeframe, which further hindered the review process.

The appeal board affirmed the denial, concluding that there was insufficient evidence to support the applicant's claims of submitted documentation. The board also noted the absence of a reasonable plan from the applicant to address his significant financial problems, leading to the final decision to deny the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

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 Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedSep 30, 2015
Answer filed—
Hearing held—Decided on the written record.
Decision dateJun 24, 2016

Cite For

Insufficient Evidence to Support Claims of Submitted Documentation
Failure to Respond to the FORM as a Factor in Denial
Affirmation of Denial Based on Unresolved Financial Issues Under Guideline F

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 a denial of a security clearance based on financial considerations under Guideline F. The Applicant argued that the Judge did not consider certain documents he claimed to have submitted. The Board affirmed the decision, finding no harmful error in the Judge's ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMichael H. Leonard — denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant claimed that the Judge did not consider all submitted evidence.

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 no corroborating evidence for the Applicant's claims regarding submitted documentation and affirmed the Judge's decision based on substantial evidence supporting the denial of the security clearance.

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
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: We have, in the past, remanded cases to the appropriate judges for consideration of documents that applicants had submitted but which were not incorporated into the record. However, in this case there is nothing in the record to corroborate Applicant’s claim that he actually submitted this documentation, such as postal receipts, USPS tracking documents, etc. Also, Applicant does not attach the cited documents to his appeal brief, nor does Applicant state when he submitted this documentation or during what stage of the security clearance process he provided it to the Government. Accordingly, we find no reason to remand the case. Adverse decision affirmed. CASENO: 15-02156.a1 DATE: 06/24/2016 DATE: June 24, 2016 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-02156

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 September 30, 2015, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns were raised under Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). The case was decided on the written record. On March 31, 2016, after the close of the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Michael H. Leonard denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether there are grounds for ordering a remand to allow the Judge to consider documents Applicant claims he submitted. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant did not respond to the File of Relevant Material (FORM) submitted by the Government within the 30-day period from receipt of the FORM. Applicant has been continuously employed as an engineer for the last 25 years. His employment history also includes honorable service with the U.S. Army during the period 1980 through 1990. He has been married and divorced three times with his most recent divorce occurring in 2012. Applicant disclosed a history of financial problems in his October 2012 security clearance application. Specifically, Applicant reported a failure to file federal income tax returns for tax years 2007, 2008 and 2009, due to a delay associated with his then spouse’s business. Applicant stated that the returns were filed in 2010. Applicant also reported six other delinquent accounts. The SOR alleged and the record shows that Applicant has other numerous delinquent debts as established by credit reports obtained during the security clearance process in 2012 and 2015. Although some alleged debts were resolved in Applicant’s favor, Applicant has not demonstrated that he had resolved the remaining delinquent accounts set forth in the SOR. Applicant made claims in his answer to the SOR that are not supported by documentation. The Judge’s Analysis Applicant’s financial history was problematic. Other than the satisfaction of the judgment, Applicant has done very little to address his financial problems dating back to at least 2012. Applicant has not provided sufficient information to mitigate the concerns raised by his delinquent debts. Although Applicant receives some credit for taking care of the judgment in 2010, the credit is limited because the judgment was satisfied by wage garnishment, which is not truly voluntary. Applicant has not shown a reasonable plan to resolve the delinquent debts and has not demonstrated a firm commitment to adhering to that plan.

DISCUSSION

Applicant contends that either information he submitted was not provided to the Judge, or the Judge did not consider all the evidence. Applicant states that this documentation includes his financial statement explaining the reasons for his financial situation; his divorce decree which he asserts reflects his former spouse’s responsibility for the debts set forth in the SOR; receipts of payments he made toward his former spouse’s unpaid bills; a list of fraudulent activity committed by his former spouse; and a personal profile letter highlighting his 36 years of employment which includes 10 years of honorable service in the U.S. Army. We have, in the past, remanded cases to the appropriate judges for consideration of documents that applicants had submitted but which were not incorporated into the record. However, in this case there is nothing in the record to corroborate Applicant’s claim that he actually submitted this documentation, such as postal receipts, USPS tracking documents, etc. Also, Applicant does not attach the cited documents to his appeal brief, nor does Applicant state when he submitted this documentation or during what stage of the security clearance process he provided it to the Government. Accordingly, we find no reason to remand the case. See, e.g., ISCR 11-06839 at 2 (App. Bd. Apr. 30, 2013) (citing ISCR Case No. 10-09433 at 2 (App. Bd. Jul. 2, 2012). To the extent that Applicant comments on evidence not in the written record, we cannot consider it. See Directive ¶ E3.1.29. There is a presumption that the Judge considered the entire record, and Applicant has not demonstrated that he did not do so. The Judge did examine the written record which contains Applicant’s security clearance application, the SOR, Applicant’s Answer to the SOR, and two credit reports. We do note that the Judge did discuss Applicant’s military service and employment history. The Judge noted the lack of any supporting documentation submitted by Applicant to support his claims and assertions made in his answer to the SOR. The Judge’s adverse decision is based in large part on his findings concerning the insufficiency of the evidence to establish any of the mitigating conditions for the remaining allegations. In a DOHA proceeding, once the Government establishes security concerns, the applicant bears the burden of presenting evidence in mitigation or extenuation, according to the criteria set forth in the Directive. In this case, Applicant did not reply to the FORM, thereby passing up the opportunity to present evidence that might establish one or more of the mitigating conditions found under Guideline F. See, e.g., ISCR Case No. 11-00771 at 2 (App. Bd. Apr. 9, 2012). The Judge had substantial record evidence to support his material findings of security concern. In this regard, the Judge found in favor of the Applicant for 11 of the SOR allegations (SOR allegations 1.e through 1.k, 1.m, 1.q, 1.r, and 1.v). In his answer to the SOR, Applicant attributed several of these medical debts to his former spouse. Also, Applicant admitted to two of the debts alleged in the SOR without any explanation. Those two debts totaled over $23,000 (SOR allegations 1.band 1.p). Thus, even if the Judge erred, it was harmless. See, e.g., ISCR Case No. 14-03574 at 2 (App. Bd. Sept. 2, 2015). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The Judge’s adverse 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 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: Catherine M. Engstrom Catherine M. Engstrom Administrative Judge Member, Appeal Board