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ISCR Case 15-08779.a1 — CASE

ISCR Case 15-08779.a1denied

Case Headnote

ISCR Case No. 15-08779.a1

Nov 3, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance under Guideline F (Financial Considerations) due to unmitigated financial concerns. The denial was based on the applicant's failure to provide sufficient evidence regarding delinquent debts and bankruptcy, and a lack of documentation to support her claims.

Specifically, the applicant did not provide corroborating evidence to dispute the legitimacy of her debts. The judge found that her claims of financial resolution were unsubstantiated, relying solely on her uncorroborated statements.

Ultimately, the applicant did not demonstrate responsible action concerning her debts, despite asserting an ability to pay them off. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

F.3raisedInability or Unwillingness to Satisfy Debts

Mitigating

F.2rejectedThe Conditions That Resulted in the Financial Problems Were Largely Beyond the Person's ControlThe judge acknowledged the applicant's divorce and economic downturn but found insufficient evidence of responsible action regarding debts.
F.3rejectedThe Person Has Received or Is Receiving Counseling for the Financial ProblemThe applicant's claims of hiring a law firm to assist with her debts were not substantiated with evidence.

Key Rule Quoted

“In a proceeding under the Directive, it is the applicant’s duty to present evidence in mitigation of the concerns raised in the SOR.”

Procedural Posture

SOR issuedJun 8, 2016
Answer filed—
Hearing heldJul 25, 2017Decision on written record
Decision dateNov 3, 2017

Cite For

Insufficient Evidence to Mitigate Financial Concerns Under Guideline F
Applicant's Duty to Present Evidence in Mitigation
Unsubstantiated Claims Regarding Financial Resolution

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 under Guideline F. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRobert J. Kilmartin — 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 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 considered all evidence and did not weigh it in an arbitrary or capricious manner. The applicant failed to present sufficient mitigating evidence regarding her financial issues.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealBurden of persuasion

Appeal Board panel

Michael Ra’anan — Chair
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 on appeal are not enough to rebut the presumption that the Judge considered all of the evidence in the record. Neither is it enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Adverse decision affirmed. CASENO: 15-08779.a1 DATE: 11/3/2017 DATE: November 3, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-08779

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Andrew G. Dualan, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On June 8, 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 July 25, 2017, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Robert J. Kilmartin 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 was divorced in 2012. Her ex-husband lost his job shortly before the divorce and was out of work for a year. During their marriage, Applicant and her ex-husband were discharged in Chapter 7 bankruptcy. A few years later they filed under Chapter 13, but it was dismissed. Applicant’s SOR lists several delinquent debts, for medical expenses and an automobile repossession, in addition to the two bankruptcy actions. Applicant states that she could pay the debts, but she disputes them. She contends that she has rebuilt her credit rating since her divorce. However, at the time she completed her security clearance application, Applicant had taken no action to resolve the debts that came to be alleged in the SOR. Though the Judge noted Applicant’s contention that her ex-husband was not a good manager of the couple’s finances, he stated that she did not produce evidence, such as a divorce decree, to show that her ex-husband bore responsibility for the debts at issue in this case. In her response to the File of Relevant Material (FORM), Applicant contended that she could easily pay off her debts but had been advised by a law firm to wait until her dispute of a debt alleged to be owed to a bank has been resolved. The Judge found it unclear whether the law firm had actually taken measures to address Applicant’s financial problems. The Judge’s Analysis The Judge noted Applicant’s divorce and a downturn in the economy, which were circumstances beyond her control. However, he stated that she had not produced any documentation to show responsible action in regard to her debts. He specifically stated that Applicant had not provided documentary corroboration to show a basis for any disputes of her debs. The Judge noted language in the FORM that placed Applicant on notice of her duty to provide evidence in support of her claims of debt resolution or to dispute the legitimacy of her debts. He stated that the only evidence of debt resolution is Applicant’s uncorroborated statements. In the whole-person analysis, the Judge reiterated his findings about Applicant’s divorce. However, he stated that she had not addressed the specific allegations in the SOR, persisting with the belief that her ex-husband was solely responsible for their joint debts.

DISCUSSION

Applicant’s brief includes references to matters from outside the record, which we cannot consider. Directive ¶ E3.1.29. She contends that the Judge did not consider all of the evidence. She states that her debts were jointly incurred with her ex-husband and that she had discharged her share of the obligations. She cites to her having hired a law firm to assist in resolving her problems and lists her professional achievements, her education, etc. She also contends that the debts arose a long time ago and, therefore, have been mitigated through the passage of time. Applicant’s arguments on appeal are not enough to rebut the presumption that the Judge considered all of the evidence in the record. Neither are they enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15-08711 at 3 (App. Bd. Aug. 24, 2017). We note Applicant’s argument about the age of her debts. However, unpaid debts are an ongoing course of conduct for the purpose of DOHA adjudications. See, e.g., ISCR Case No. 15-06532 at 3 (App. Bd. Feb. 16, 2017). In a proceeding under the Directive, it is the applicant’s duty to present evidence in mitigation of the concerns raised in the SOR. Directive ¶ E3.1.15. In the case before us, the Judge’s conclusion that Applicant had not presented sufficient mitigating evidence is sustainable. “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, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

ORDER

The Decision is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, 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