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ISCR Case 15-01652.a1 — CASE

ISCR Case 15-01652.a1denied

Case Headnote

ISCR Case No. 15-01652.a1

Jul 7, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

The applicant, representing himself, was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial was based on a lack of demonstrated financial responsibility and ongoing financial problems, specifically citing Disqualifying Conditions AG ¶ 20 and AG ¶ 15.

Key issues included the applicant's failure to establish a track record of financial responsibility and the presence of an unresolved judgment incurred after bankruptcy. The appeal board found that the applicant's financial problems were not fully resolved or under control.

Ultimately, the appeal board upheld the denial of the security clearance, concluding that the applicant had not mitigated the concerns related to his personal conduct and financial considerations.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

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 issuedNov 22, 2015
Answer filed—
Hearing heldApr 29, 2017
Decision dateJul 7, 2017

Cite For

Affirmation of Adverse Decision Based on Unresolved Financial Issues
Lack of Demonstrated Financial Responsibility Under Guideline F
Impact of Post-bankruptcy Judgments on Security 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 a denial of a security clearance based on financial considerations and personal conduct. The applicant argued that the adverse decision was arbitrary and capricious due to his debts being discharged in bankruptcy. The Board affirmed the decision, finding no harmful error in the Judge's conclusions regarding the applicant's financial responsibility.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJennifer I. Goldstein — denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline E

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.

Why the Board ruled this way

The Board found that the Judge's conclusion regarding the applicant's financial responsibility was sustainable based on the evidence presented, and the applicant did not demonstrate that the Judge's decision was arbitrary, capricious, or contrary to law.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael Ra’anan — Chair
James F. Duffy
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; Guideline E DIGEST: Based on the record that was before her, the Judge’s conclusion that Applicant had not demonstrated a track record of financial responsibility and that his financial problems were not fully resolved or under control, despite the discharge in bankruptcy is sustainable. Adverse decision affirmed. CASENO: 15-01652.a1 DATE: 07/07/2017 DATE: July 7, 2017 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-01652

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 November 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) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On April 29, 2017, after the considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Jennifer I. Goldstein denied Applicant’s request for a security clearance. 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 his debts were discharged in bankruptcy. As an attachment to his appeal brief he includes a credit report which was not part of the record below. The Board cannot consider that new evidence on appeal. Directive ¶ E3.1.29. Applicant’s argument does not demonstrate that the Judge’s decision is arbitrary, capricious, or contrary to law. 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. 15-02692 at 2 (App. Bd. Oct. 26, 2016). In reaching her adverse decision under Guideline F, the Judge noted that all but one of Applicant’s debts had been discharged in bankruptcy. Decision at 2-3. However, she also noted that he had “not acted responsibly, or in a timely manner, to attempt to resolve his delinquent debt,” he had incurred a judgment subsequent to the bankruptcy discharge that remained unresolved, and that “at least in late 2014, he was spending substantially more that he earned each month.” Id. at 4-5. Based on the record that was before her, the Judge’s conclusion that Applicant had not demonstrated a track record of financial responsibility and that his financial problems were not fully resolved or under control, despite the discharge in bankruptcy is sustainable. See, e.g., ISCR Case No. 14-01243 at 3 (App. Bd. Jun. 18, 2015)(Even if an applicant has actually paid his debts, a Judge may still consider the circumstance underlying the debts for what they may reveal about the applicant’s eligibility for a clearance). The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision under Guideline F is arbitrary, capricious, or contrary to law. Moreover, Applicant has not challenged the Judge’s adverse decision as to the Guideline E allegations. “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).

ORDER

The decision is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board Signed: Williams S. Fields William S. Fields Administrative Judge Member, Appeal Board