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ISCR Case 15-08274.a1 — CASE

ISCR Case 15-08274.a1denied

Case Headnote

ISCR Case No. 15-08274.a1

Jun 12, 2017· Hon. James E. Moody· appeal

Summary

A 57-year-old military veteran and small business owner was denied a security clearance under Guideline F (Financial Considerations). The applicant faced significant financial concerns, including approximately $100,000 in debts, bankruptcies, and unpaid obligations, which raised disqualifying conditions F3 and F2.

While the applicant presented some mitigating factors, also under F2 and F3, the judge determined that insufficient documentation was provided to alleviate security concerns. Specifically, the applicant failed to adequately document financial progress and efforts to mitigate the outstanding debts.

Ultimately, the judge concluded that the existing mitigating evidence did not compel a favorable decision. The applicant's arguments were viewed as a disagreement with the judge's evaluation of the evidence, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

F3raisedInability or Unwillingness to Satisfy Debts
F2notedDeliberately Failing to Timely File Annual Income Tax Returns

Mitigating

F2appliedThe Conditions That Resulted in the Financial Problems Were Largely Beyond the Person's Control
F3rejectedThe Individual Has Made Good Faith Efforts to Repay Overdue CreditorsThe applicant did not provide sufficient documentation to support claims of good faith efforts.

Key Rule Quoted

“It is well established that the presence of some mitigating evidence does not compel the Judge to make a favorable security clearance decision.”

Procedural Posture

SOR issuedJul 11, 2016
Answer filed—
Hearing heldMar 24, 2017
Decision dateJun 12, 2017

Cite For

Insufficient Documentation to Mitigate Financial Concerns Under Guideline F
Disagreement with the Judge's Weighing of Evidence Does Not Constitute Grounds for Appeal
The Presence of Mitigating Evidence Does Not Guarantee a Favorable Decision.

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 who was denied due to financial considerations under Guideline F. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and that the applicant's arguments did not demonstrate harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowArthur E. Marshall, Jr. — denied the clearance

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.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the applicant's arguments were essentially a disagreement with the Judge's weighing of the evidence, which does not constitute a harmful error.

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’s arguments amount to a disagreement with the Judge’s weighing of the evidence. It is well established that the presence of some mitigating evidence does not compel the Judge to make a favorable security clearance decision. Adverse decision affirmed. CASENO: 15-08274.a1 DATE: 06/12/2017 DATE: June 12, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-08274

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 July 11, 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 March 24, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Arthur E. Marshall, Jr., 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’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant is a 57-year-old small business owner. He served in the military, both active and reserve, from 1977 to 2013, including three combat tours. Before the events of September 11, 2001, he was self-employed and financially stable. After 9/11, he was recalled to military service and deployed to the Middle East. His business failed without his guidance. He filed Chapter 7 bankruptcy in 2002 and his debts were discharged in 2003. In 2007, Applicant purchased a home. When he and his wife were going through a divorce in 2010, the home had depreciated considerably. During the divorce, he bought his wife’s interest in the property, transferred assets to her, became responsible for two of the children at home, and had considerable debt. When the Government shutdown at the end of 2013, Applicant had contracts cancelled and lost his medical insurance. He filed Chapter 13 bankruptcy, which was dismissed for failure to include required documentation. In 2014, his son experienced serious health issues that increased his debt. For a period, he cared for his son 24 hours a day and home-schooled him. The SOR includes 21 debts totaling about $100,000.1 Some of the debts relate to his son’s medical care for which he has made some payments. Five debts relate to student loans totaling over $55,000 that are in a rehabilitation plan for which he makes monthly payments of $5. He provided evidence of making monthly payments of about $800 on a child support arrearage, but did not provided proof of making monthly supplemental payments of about $300. He claimed a $45,000 mortgage account on a house lost to foreclosure was included in his last bankruptcy, but provided no documentation supporting that assertion. He stated that he made some payments on a $15,000 legal fee arising from his divorce in 2010, but provided no documentary evidence of such efforts. He failed to provide documentation showing payments on other smaller debts. Applicant has not received financial counseling. His wife manages the household bills and utilizes a budget. He presently is living within his means while building his company. The Judge’s Analysis There is no doubt that Applicant sacrificed for his country and family. He is a highly credible small business owner who faced multiple dilemmas impacting his finances, including a recall to active duty, divorce, and his son’s medical problems. He exhausted his financial reserves before borrowing what he needed to care for his son. He is making de minimis payments under the student loan rehabilitation program. Unfortunately, other efforts were not documented. While it appears he is currently living within his means, there is insufficient documentary evidence of 1 In his Analysis, the Judge stated Applicant had multiple debts totaling about $151,000. progress to conclude the security concerns have been mitigated.

DISCUSSION

Applicant contends that there is no evidence of poor self-control, lack of judgment, or unwillingness to abide by rules and regulations. He disputes that he has an unwillingness to pay his bills and highlights his financial dilemmas as well as his efforts to rebuild his company. His arguments amount to a disagreement with the Judge’s weighing of the evidence. It is well established that the presence of some mitigating evidence does not 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 parties disagreement with the Judge’s weighing of the evidence, or the 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 14-06686 at 2 (App. Bd. Apr. 27, 2016.) The Judge’s whole-person analysis is supportable because Applicant’s security-significant conduct was evaluated in light of the entirety of the record evidence. See, e.g., ISCR Case No. 14-02806 at 4 (App. Bd. Sep. 9, 2015). 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