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ISCR Case 15-06160.a1 — CASE

ISCR Case 15-06160.a1denied

Case Headnote

ISCR Case No. 15-06160.a1

deniedJul 18, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

This case concerns an applicant who sought a trustworthiness designation under Guideline F, Financial Considerations, but was ultimately denied. The applicant, representing himself, presented arguments regarding his financial situation.

Despite the applicant's claims of having resolved his debts, the judge identified substantial and recurring unresolved financial issues. These issues were significant enough to raise disqualifying conditions under Adjudicative Guideline (AG) ¶ 20.

The judge concluded that the applicant's financial difficulties were likely to persist for an indefinite period. While mitigating conditions under AG ¶ 21 were considered, they were insufficient to overcome the concerns regarding the applicant's ongoing financial instability. Consequently, the trustworthiness designation was denied.

Why the Applicant Was Denied

The applicant had unresolved financial issues that were substantial and recurring.
The judge determined that the applicant's financial difficulties were likely to continue for some time.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe judge noted that the applicant lives paycheck to paycheck and spends more than he earns.

Key Rule Quoted

“such a determination may be granted only when ‘clearly consistent with the interest of national security’”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedApr 5, 2016
Answer filed—Applicant represented himself.
Hearing heldApr 26, 2017
Decision dateJul 18, 2017

Cite For

Evaluation of Ongoing Financial Difficulties Under Guideline F
Impact of Living Paycheck to Paycheck on Trustworthiness Determinations
Standards for Trustworthiness Determinations Consistent with National Security Interests

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

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: Based on the record that was before him, the Judge’s conclusion that Applicant “has a substantial and recurring financial problem that he has not resolved and cannot with his available resources” and “[i]tis highly likely his financial difficulties will continue for some time” is sustainable. Adverse decision affirmed. CASENO: 15-06160.a1 DATE: 07/18/2017 DATE: July 18, 2017 In Re: ---------------- Applicant for Trustworthiness Designation ) ) ) ) ) ) ) ) ADP Case No. 15-06160

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 trustworthiness designation. On April 5, 2016, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—trustworthiness 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 April 26, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Philip S. Howe denied Applicant’s request for a trustworthiness designation. 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 decision is arbitrary, capricious or contrary to law. Applicant argues that the Judge’s adverse decision should be reversed because he paid off both of the SOR debts and proof was submitted. In support of his argument he states that the reason he waited eight months after the issuance of the SOR to withdraw money from his retirement account to pay off the debts was so that he could accrue interest on the account before paying the amounts owed. His argument does not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law.

The presence of some mitigating evidence does not alone compel the Judge to make a favorable trustworthiness determination. 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., ADP Case No. 16-01251 at 2 (App. Bd. Jun. 7, 2017). In reaching his adverse decision, the Judge specifically found that Applicant had paid both of the debts listed in the SOR. Decision at 5-6. However, in evaluating Applicant’s case in mitigation, he also noted that Applicant “lives from paycheck to paycheck,” “spends more than he earns monthly,” and “is currently seeking a second job with which to earn sufficient funds to pay his delinquent debts not listed in the SOR.” Id. at 2-3, 6. Based on the record that was before him, the Judge’s conclusion that Applicant “has a substantial and recurring financial problem that he has not resolved and cannot with his available resources” and “[i]tis highly likely his financial difficulties will continue for some time” is sustainable. Id. at 6; see, e.g., ISCR Case No. 14-02930 at 3 (App. Bd. Dec. 9, 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 clearance eligibility). 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. See, e.g., ADP Case No. 16-01251 supra. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the decision. The standard applicable to trustworthiness cases is that set forth in Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) regarding security clearances: such a determination “may be granted only when ‘clearly consistent with the interest of national security’.” See, e.g., ADP Case No. 16-01251 supra. See also Kaplan v. Conyers, 733 F.3d 1148 (Fed. Cir. 2013), cert. denied.

ORDER

The decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. 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