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ISCR Case No. 00-0104

Appeal Board

Decided Mar 21, 2001 · Administrative Judge Michael Y. Ra'anan · Appeal

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The appeal involved a review of an Administrative Judge's decision denying the Applicant a security clearance based on financial considerations. The Applicant argued that the Judge erred in concluding that his financial situation posed a security risk and failed to comply with the Directive. The Board affirmed the Judge's decision, finding no harmful errors that would warrant a reversal or remand.

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Appearances

at the errors are harmless. When considered individually or cumulatively, the Judge's errors in this case do not warrant remand or reversal in light of the record evidence as a whole. Applicant's history of unresolved financial difficulties provides a sufficient basis for the

Procedural History

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DATE: March 21, 2001

<HR>

In Re:

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SSN: -----------

Applicant for Security Clearance

<HR>

ISCR Case No. 00-0104

APPEAL BOARD DECISION

APPEARANCES</ P

Appeal Issues

FOR GOVERNMENT

Peregrine D. Russell-Hunter, Esq., Chief Department Counsel

FOR APPLICANT

Pro Se

Administrative Judge Darlene Lokey Anderson issued a decision, dated October 27, 2000, in which she concluded it is not clearly

consistent with the national interest to grant or continue a security clearance for Applicant. Applicant appealed. For the reasons

set forth below, the Board affirms the Administrative Judge's decision.

This Board has jurisdiction on appeal under Executive Order 10865 and Department of Defense Directive 5220.6 (Directive),

dated January 2, 1992, as amended.

Applicant's appeal presents the following issues: (1) whether the Administrative Judge erred by concluding Applicant's financial

situation posed a security risk; and (2) whether the Administrative Judge failed to comply with pertinent provisions of the

Directive.

<CENTER>Procedural History</ CENTER>

The Defense Office of Hearings and Appeals issued a Statement of Reasons (SOR) dated May 31, 2000 to Applicant. The SOR

was based on Guideline F (Financial Considerations). A hearing was held on September 15, 2000. The Administrative Judge

issued a written decision, dated October 27, 2000, in which she concluded it is not clearly consistent with the national interest to

grant or continue a security clearance for Applicant. The case is before the Board on Applicant's appeal from the Judge's adverse

decision.

<CENTER>Appeal Issues</CENTER>

1. Whether the Administrative Judge erred by concluding Applicant's financial situation posed a security risk. Applicant contends

the Administrative Judge erred by concluding the facts and circumstances of Applicant's financial situation pose a security risk. In

support of this contention, Applicant argues: (a) some of the Judge's factual findings are inaccurate; (b) the Judge erred by

referring to criminal conduct in her decision; (c) the record evidence does not support the Judge's conclusion that Department

Counsel met its initial burden of proving Applicant experienced excessive financial indebtedness; (d) Department Counsel failed

to establish any risk that Applicant has engaged in or is at risk of engaging in illegal acts because of his financial situation; (e) the

Judge erred by concluding Applicant failed to present persuasive evidence in rebuttal, explanation, or mitigation because

Department Counsel failed to prove any case that required Applicant to rebut, explain, or mitigate; and (f) even if Department

Counsel met its initial burden, Applicant presented evidence that rebutted, explained, and mitigated the government's case against

him.

(a) Administrative Judge's factual findings. The Administrative Judge made factual findings about the facts and circumstances

surrounding Applicant's financial difficulties, Applicant's efforts to deal with them, and Applicant's current financial situation

(which includes approximately $180,000 of still unsatisfied debts). On appeal, Applicant indicates he "does not dispute any major

aspect of the Findings of Fact portion of the Decision at pages 2-4, as far as they go." However, Applicant challenges the

following findings by the Judge: (i) Applicant owes the debt alleged in SOR paragraph 1.a.; (ii) Applicant has not satisfied the

debt covered by SOR paragraph 1.b.; and (iii) Applicant has not satisfied the debt covered by SOR paragraph 1.e.<A HREF="#N_1_"> (1)</A>

The Administrative Judge's finding about SOR paragraph 1.a. reflects a plausible interpretation of the record evidence. Given the

particular facts of this case, it was not arbitrary or capricious for the Judge to conclude Applicant is responsible for this debt.

Applicant's challenge to the Administrative Judge's finding about SOR paragraph 1.b. is based on his assertion that, since the

hearing, he has paid that debt. Applicant's assertion constitutes new evidence, which the Board cannot consider. See Directive,

Additional Procedural Guidance, Item E3.1.29. As of the close of the record below, Applicant had not satisfied the debt covered

by SOR paragraph 1.b. Accordingly, the Judge's finding about that debt is well-founded and sustainable on appeal.

Applicant's challenge to the Administrative Judge's finding about SOR paragraph 1.e. is based on his contention that: (i) he

testified that one part of the $18,000 debt had been paid; (ii) he testified that another part of the debt has been subject to good faith

efforts to pay; and (iii) since the hearing he has made a payment toward the debt. As indicated in the preceding paragraph, the

Board cannot consider new evidence on appeal. Furthermore, the Judge was not required to accept Applicant's testimony about

this debt at face value. See, e.g., ISCR Case No. 99-0519 (February 23, 2001) at p. 12. The absence of documentation to

corroborate claims of satisfying debts is relevant in deciding whether such claims should be accepted. Cf. ISCR Case No. 98-0419

(April 30, 1999) at p. 4 (in concluding Administrative Judge failed to take into account an applicant's failure to provide

documentation to support his general statements about his financial interests, the Board noted an applicant reasonably can be

expected to have or be able to get documentation concerning his financial interests such as income, checking and savings accounts,

business assets, and accrued retirement funds).

Applicant also makes arguments that essentially concede the Administrative Judge's findings of fact concerning the debts covered

by SOR paragraphs 1.d., 1.g., 1.h., but which seek to present a favorable interpretation of those debts. Our resolution of

Applicant's arguments on these points is subsumed in the Board's discussion below of Applicant's contention that he presented

evidence that rebutted, explained, and mitigated Department Counsel's case against him.

Applicant also challenges the Administrative Judge's formal finding against him with respect to SOR paragraph 1.i., arguing that

the adverse formal finding is not justified in light of the Judge's specific factual findings about his current income and monthly

expenses. Applicant's argument has merit. Given the Judge's factual findings on this aspect of the case, it was arbitrary and

capricious for the Judge to enter a formal finding against Applicant with respect to SOR paragraph 1.i. However, the error was

harmless because, upon consideration of the whole record, there is not a significant chance that, but for this error, the Judge would

have reached a different result. See, e.g., ISCR Case No. 98-0657 (November 16, 1999) at p. 3.

(b) Administrative Judge's reference to criminal conduct. Applicant points to the following passage in the Administrative Judge's

decision: "The Government is therefore appropriately concerned where available information indicates that an Applicant for

clearance may be involved in criminal conduct, which demonstrates poor judgment, untrustworthiness or unreliability." Applicant

argues the Judge erred because there is no record evidence that he ever engaged in criminal conduct or any conduct that indicates

poor judgment, untrustworthiness or unreliability. Applicant asks the Board to reverse the Judge's decision to the extent the cited

passage is erroneous.

The Board does not review isolated sentences in an Administrative Judge's decision; rather, the Board will read the Judge's

decision in its entirety to determine what the findings the Judge made and what conclusions the Judge reached. See, e.g., ISCR

Case No. 00-0311 (March 8, 2001) at p. 2. Reading the Judge's decision in its entirety, the Board concludes the passage cited by

Applicant is an unexplained anomaly, not an integral part of the Judge's analysis of Applicant's history of financial difficulties.

Under the particular facts of this case, the anomaly constitutes harmless error that does not warrant remand or reversal because

there is not a significant chance that, but for this error, the Judge would have reached a different result.

(c) Department Counsel's burden of proof. Applicant contends the Administrative Judge erred by concluding Department Counsel

met its initial burden of proof under Guideline F because the record evidence does not support the Judge's conclusion that

Applicant's history of financial difficulties indicates "poor judgment, unreliability and untrustworthiness on the part of the

Applicant." Applicant's argument fails to demonstrate harmful error by the Judge.

Applicant's appeal brief sets forth arguments for why the facts and circumstances of his history of financial difficulties are not

indicative of poor judgment, unreliability, or untrustworthiness on his part. However, Applicant's arguments fail to demonstrate

harmful error because they essentially aim to rebut two sentences in the Judge's decision. As discussed earlier in this decision, the

Board does not review isolated sentences in a Judge's decision. The Judge's use of the phrase "poor judgment, unreliability and

untrustworthiness" is difficult to reconcile with her conclusions that Applicant became indebted due to circumstances reasonably

outside of his control and that Applicant is making some progress toward reducing his indebtedness. Thus, the Judge's use of the

phrase constituted error. Such error is harmless, however, since the use of the phrase does not undercut the Judge's basic analysis

of the case. Since there is not a significant chance that, but for this error, the Judge would gave reached a different result, the error

is harmless. Additionally, such error does not change the fact that Department Counsel met its initial burden of proof in this case

by establishing that Applicant has a history of financial difficulties that is still not resolved.

(d) Department Counsel's failure to prove risk. Applicant contends Department Counsel failed to establish there is any risk that he

has engaged in or is at risk of engaging in illegal acts because of his financial situation. Applicant is correct in arguing that

Department Counse

Conclusion

3_">3. </A> "[The person] . . . [v]oluntarily reported the information."

<A NAME="N_4_">4. </A> "[The person] . . . [w]as truthful and complete in responding to questions."

<A NAME="N_5_">5. </A> "[The person] . . . [s]ought assistance and followed professional guidance, where appropriate."

<A NAME="N_6_">6. </A> "[The person] . . . [r]esolved or appears likely to favorably resolve the security concern."

<A NAME="N_7_">7. </A> "[The person] . . . [h]as demonstrated positive changes in behavior and employment."

<A NAME="N_8_">8. </A> "[The person] . . . [s]hould have his or her access temporarily suspended pending final adjudication of the information."

<A NAME="N_9_">9. </A> "The behavior was not recent."

<A NAME="N_10_">10. </A> "It was an