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ISCR Case 15-04266.a1 — CASE

ISCR Case 15-04266.a1denied

Case Headnote

ISCR Case No. 15-04266.a1

Jun 2, 2017· Hon. James E. Moody· appeal

Summary

A 49-year-old federal contractor was denied a security clearance under Guideline F (Financial Considerations) due to a Chapter 7 bankruptcy and tax liens. The appeal board upheld the denial, concluding that the applicant had not provided sufficient evidence of responsible debt management or demonstrated that the initial judge's decision was arbitrary or contrary to law.

Disqualifying conditions F3 and F1 were raised, while mitigating conditions F2 and F3 were considered. The denial was based on the applicant's failure to provide adequate evidence of responsible debt management. Specifically, the judge determined that including non-delinquent debts in the bankruptcy filing did not constitute a responsible approach to managing finances.

Furthermore, insufficient evidence was presented regarding the applicant's current financial status. Ultimately, the security clearance was denied.

Conditions Referenced

Disqualifying

F3raisedInability or Unwillingness to Satisfy Debts
F1raisedFinancial Considerations

Mitigating

F2rejectedThe Conditions That Resulted in the Financial Problems Were Largely Beyond the Person's ControlThe judge found insufficient evidence to conclude that the applicant acted responsibly regarding his debts.
F3notedThe Person Has Received or Is Receiving Counseling for the Financial Problem

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 issuedJan 4, 2016
Answer filed—
Hearing heldMar 7, 2017
Decision dateJun 2, 2017

Cite For

Insufficient Evidence of Responsible Debt Management Under Guideline F
Affirmation of Denial Based on Financial Considerations
Standards for Evaluating Financial Responsibility 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 was regarding the denial of a security clearance based on financial considerations under Guideline F. The applicant argued that the Judge's weighing of evidence was flawed. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCarol G. Ricciardello — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge considered all record evidence and did not weigh it in an arbitrary or capricious manner. The decision was sustainable based on the evidence presented.

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

William S. Fields
James E. Moody
James F. Duffy

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: Applicant has not rebutted the presumption that the Judge considered all of the record evidence. Neither has he shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Adverse decision affirmed. CASENO: 15-04266.a1 DATE: 06/02/2017 DATE: June 2, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-04266

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 4, 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 decision on the written record. On March 7, 2017, 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 issue on appeal: whether the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact and Analysis Applicant is a 49-year-old employee of a Federal contractor. He filed Chapter 7 bankruptcy in 2011, and his debts were discharged in 2011. A Federal tax lien for about $35,000 was filed against him in 2011. He entered into an agreement with the Internal Revenue Service to make monthly payments of $370 and have his future tax refunds applied to the debt. In his response to Department Counsel’s File of Relevant Material (FORM), he provided documentation that he satisfied the Federal tax lien. A state tax lien was filed against him in 2012. He entered into an agreement with the state to make monthly payments and provided documents showing he has complied with the agreement and had one remaining payment. The Judge found in favor of Applicant on the Federal and state tax liens and against him on the bankruptcy allegation. Applicant attributed his bankruptcy to two real estate investments that he was unable to maintain due to a decline in the market. He stopped making payment on the mortgages so he could short sale the properties. The record contains no specific information about the properties, including why he could not pay the mortgages. He did not provided specific information about his finances at that time, but indicated that he was current on all of his accounts and was advised by an attorney to include them in the bankruptcy. Bankruptcy records reflect he had over $600,000 of unsecured nonpriority claims, which included numerous credit cards, a boat loan, two timeshares, unemployment compensation, utilities, and many other debts. It appears all of these accounts were discharged. There is insufficient evidence to determine the reason why these accounts were discharged if they were not delinquent or why he did not reaffirm them. He failed to provide sufficient information to explain why he noted on his security clearance application that his bankruptcy was for $183,000 when documents indicate a much higher amount.

While the downturn in the real estate market and his business were conditions beyond his control, Applicant did not provide sufficient evidence to conclude he acted responsibly regarding his debts. The Judge noted she was unable to conclude that including debts that were not delinquent in the bankruptcy was a responsible method of managing debts. No evidence was provided regarding Applicant’s current finances, income, expenses, or business. Insufficient evidence was present to conclude his current finances are under control.

DISCUSSION

Applicant’s appeal brief includes information that was not presented to the Judge for consideration. We cannot consider new evidence on appeal. Directive ¶ E3.1.29. Applicant essentially contends that the Judge erred in her application of the mitigating conditions. In doing so, he argues the bankruptcy occurred five years ago, he never filed bankruptcy previously, the chain of events that precipitated the bankruptcy were beyond his control and unlikely to recur, and he is currently living within his means. The Judge made finding about these matters and discussed them in her analysis. Applicant has not rebutted the presumption that the Judge considered all of the record evidence. Neither has he shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 13-00502 at 3 (App. Bd. Mar. 7, 2017). The Judge complied with the requirements of the Directive in that she considered Applicant’s security concerns in light of the entirety of the evidence. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board