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ISCR Case 15-08684.a1 — CASE

ISCR Case 15-08684.a1denied

Case Headnote

ISCR Case No. 15-08684.a1

Nov 22, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied clearance primarily under Guideline F (Financial Considerations) and Guideline E (Personal Conduct). The denial stemmed from a significant and ongoing history of financial difficulties.

Key disqualifying conditions included the applicant's failure to file tax returns from 2009 to 2012, an IRS wage garnishment, and a Chapter 7 bankruptcy filing in 2011. The judge determined that these financial issues were both recent and persistent.

While the applicant presented mitigating evidence, it was deemed insufficient to overcome the serious nature of the disqualifying financial circumstances. Consequently, the judge concluded that the applicant's financial problems were not adequately resolved, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

F3raisedInability or Unwillingness to Satisfy Debts
F2raisedA History of Not Meeting Financial Obligations

Mitigating

F3rejectedThe Conditions That Led to the Financial Problems Were TemporaryThe judge found that the mitigating evidence did not outweigh the disqualifying circumstances.
F2rejectedThe Applicant Has Made Efforts to Resolve DebtsThe judge concluded that the applicant's financial issues were ongoing and serious.

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 issuedMay 4, 2016
Answer filed—
Hearing heldSep 7, 2017
Decision dateNov 22, 2017

Cite For

Denial of Security Clearance Due to Financial Issues Under Guideline F
Impact of Ongoing Financial Problems on Security Clearance Eligibility
Insufficient Mitigating Evidence in the Context of Serious Disqualifying Circumstances

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 issues and personal conduct. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding that the evidence supported the conclusion that the applicant's financial issues were recent and ongoing, and that the mitigating evidence was insufficient to overcome the government's security concerns.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge’s adverse decision is arbitrary, capricious or contrary to law.

Why the Board ruled this way

The Board concluded that the Judge examined the relevant data and articulated a satisfactory explanation for his decision, affirming the unfavorable security clearance decision as sustainable.

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: The Judge found that Applicant had a lengthy history of not meeting financial obligations, including failing to file Federal income tax returns from 2009 to 2012; an IRS garnishment of wages in about 2013 or 2014; a Chapter 7 discharge in bankruptcy in 2011; and a subsequent vehicle repossession and delinquent accounts. In light of the foregoing, the Judge could reasonably conclude that Applicant’s “financial issues are recent and ongoing.” and the evidence “does not completely mitigate the judgement issues raised by Applicant’s failure to comply with the tax laws.” Adverse decision affirmed. CASENO: 15-08684.a1 DATE: 11/22/2017 DATE: November 22, 2017 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-08684

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 May 4, 2016, DOHA 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 hearing. On September 7, 2017, after the hearing, Defense Office of Hearings and Appeals Administrative Judge Edward W. Loughran denied Applicant’s request for a security clearance.1 Applicant timely 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 contends that the Judge’s adverse decision as to the Guideline F allegations is based on the fact that Applicant was an “enthusiast of a certain car model”—a conclusion that “is not altogether correct.” As part of his submission on appeal, he offers new evidence in the form of a statement providing correct information where he “inadvertently answered a question incorrectly with regard to [his] tax situation.” The Board cannot consider this new evidence on appeal. See Directive ¶ E3.1.29. The Judge found that Applicant had a lengthy history of not meeting financial obligations, including failing to file Federal income tax returns from 2009 to 2012; an IRS garnishment of wages in about 2013 or 2014; a Chapter 7 discharge in bankruptcy in 2011; and a subsequent vehicle repossession and delinquent accounts. Decision at 2, 3, 5, and 6. In light of the foregoing, the Judge could reasonably conclude that Applicant’s “financial issues are recent and ongoing,” and the evidence “does not completely mitigate the judgment issues raised by Applicant’s failure to comply with the tax laws.” Id. at 6-7. 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. 14-01918 at 2 (App. Bd. Jul. 8, 2015). The Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying circumstances and considered the possible application of relevant conditions and factors. He found in favor of Applicant with respect to some of the allegations, but reasonably explained why the mitigating evidence was insufficient to overcome all of the government’s security concerns. 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. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for his decision. “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). Therefore, the Judge’s unfavorable security clearance decision under is sustainable.

FOOTNOTES

1 The Judge’s favorable findings under Guideline E are not at issue on appeal. Order The decision of the Judge 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