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ISCR Case 15-02692.a1 — CASE

ISCR Case 15-02692.a1denied

Case Headnote

ISCR Case No. 15-02692.a1

Oct 26, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

The applicant, representing himself, was denied a security clearance under Guideline F (Financial Considerations) due to significant financial issues. The primary disqualifying conditions included a failure to file tax returns for six consecutive years, from 2007 through 2012, and over $4,000 in delinquent debt.

While the applicant presented mitigating evidence, it was ultimately deemed insufficient to alleviate the government's security concerns. The appeal board upheld the initial denial, concluding that the applicant's financial history presented an unacceptable risk.

Therefore, the security clearance was denied based on the unresolved financial considerations, specifically the unfiled tax returns and the substantial delinquent debt.

Conditions Referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

Mitigating

AG ¶ 20rejectedFinancial ConsiderationsThe applicant's efforts to resolve debts were insufficient to mitigate the disqualifying conditions.

Key Rule Quoted

“Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.”
— Directive ¶ E3.1.15.

Procedural Posture

SOR issuedJan 16, 2016
Answer filed—Applicant represented himself.
Hearing heldAug 23, 2016
Decision dateOct 26, 2016

Cite For

Insufficient Mitigation of Financial Issues Under Guideline F
Burden of Proof Shifts to Applicant After Government Raises Security Concerns
Criteria for Evaluating Mitigating Evidence in Security Clearance Cases

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's decision was arbitrary and that he had made efforts to improve his financial situation. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJennifer I. Goldstein — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline 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.
Erroneous finding of fact — raised by the applicantRejected
Applicant challenged the Judge's finding regarding the failure to file tax returns for 2007 and 2008.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the applicant did not demonstrate that the decision was arbitrary, capricious, or contrary to law. The Judge properly weighed the evidence and made sustainable findings regarding the applicant's financial considerations.

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
Jean E. Smallin
William S. Fields

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: Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. Adverse decision affirmed. CASENO: 15-02692.a1 DATE: 10/26/2016 DATE: October 26, 2016 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-02692

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 16, 2016, 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 hearing. On August 23, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Jennifer I. Goldstein denied Applicant’s request for a security clearance.1 Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse clearance decision is arbitrary, capricious or contrary to law. Applicant argues that the Judge’s adverse decision should be reversed because he has done his best to pay down his past debts, his credit score is rising, and he has recently been qualified for a new home loan. In support of that argument he includes new evidence as to recent efforts to resolve specific debts which the Board cannot consider on appeal. Directive ¶ E3.1.29. Applicant’s argument does not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. Applicant also challenges the Judge’s finding that he had not filed tax returns for 2007 and 2008 and other returns were not filed in a timely fashion. The Judge’s findings are sustainable. Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. A party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15-00650 at 2 (App. Bd. Jun. 27, 2016). The Judge found Applicant had failed to file his Federal and state income tax returns for tax years 2007 through 2012 and had presented insufficient evidence that those returns had been subsequently filed. She also found that Applicant had over $4,000 in delinquent debt. In her decision, the Judge noted that Applicant had attributed his failure to file his tax returns to “irresponsible” behavior. Decision at 2-3. The Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying circumstances and considered the possible application of relevant conditions and factors. She found in favor of Applicant with respect to two of the SOR allegations but reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. Decision at 6-7. The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. “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). Therefore, the Judge’s decision is sustainable.

ORDER

The decision is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board

FOOTNOTES

1 The Judge’s favorable findings as to SOR paragraphs 1.cand 1.e are not at issue on appeal.