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ISCR 15-03911.a1: Guideline E security clearance appeal, denied (2017) · CASE

ISCR Case 15-03911.a1denied

Case headnote

ISCR Case No. 15-03911.a1

Jul 21, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance due to concerns under Guideline F (Financial Considerations) and Guideline E (Personal Conduct). The applicant admitted to numerous and recent delinquent debts, which were identified as disqualifying conditions under Adjudicative Guidelines (AG) ¶ 20 and AG ¶ 15.

The applicant contended that these financial issues would not impact his judgment. However, the appeal board found no evidence presented to mitigate the financial concerns. Specifically, the applicant failed to demonstrate responsible financial behavior or dispute the debts in question.

Consequently, the appeal board upheld the denial of the security clearance, concluding that the unmitigated, numerous, and recent delinquent debts, combined with the lack of evidence of responsible financial conduct, warranted the denial.

Conditions referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

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 17, 2016
Answer filed—Applicant requested a decision on the written record.
Hearing heldMay 5, 2017Decision made by Administrative Judge LeRoy F. Foreman.
Decision dateJul 21, 2017Appeal board affirmed the denial.

Cite for

Denial Based on Numerous Delinquent Debts Under Guideline F
Failure to Mitigate Financial Concerns
Burden of Proof Shifts to Applicant After Government Raises Security Concerns

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 after being denied due to financial considerations and personal conduct. The applicant argued that his past financial problems did not affect his judgment. The Board affirmed the Administrative Judge's decision, finding no harmful error in the weighing of evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowLeRoy F. Foreman 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 should be reversed because his financial problems occurred a long time ago and never affected his good judgement.

Why the Board ruled this way

The Board affirmed the Judge's decision as the Applicant did not demonstrate that the Judge's decision was arbitrary, capricious, or contrary to law. The Judge's findings were supported by substantial evidence, and the Applicant failed to provide sufficient mitigating evidence regarding his financial issues.

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 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: 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. Adverse decision affirmed. CASENO: 15-03911.a1 DATE: 07/21/2017 DATE: July 21, 2017 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-03911

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 17, 2016, 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 May 5, 2017, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge LeRoy F. Foreman denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant admitted to all the allegations in the SOR. He requested that his case be decided on the written record and did not respond to the government’s File of Relevant Material (FORM). On appeal Applicant argues that the Judge’s adverse decision should be reversed because his financial problems occurred a long time ago and never affected his good judgement. 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. 15-01652 at 2 (App. Bd. Jul. 7, 2017). In reaching his adverse decision under Guideline F, the Judge noted that Applicant’s delinquent debts were “numerous, recent, and were not incurred under circumstances making them unlikely to recur.” Decision at 5. While they may have been due to circumstances beyond his control, Applicant had not acted responsibly. Moreover, he had “presented no evidence of counseling, payments, payment agreements, or grounds for disputing any of the debts, even though he ha[d] been employed since January 2011.” Id. Based on the record that was before him, the Judge’s conclusion that Applicant had not mitigated the government’s security concerns under Guideline F was sustainable. 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board