A decided public DOHA case, shown for research, not advice or a prediction.

ISCR Case No. 00-0377

Appeal Board

Decided Nov 19, 2001 · Administrative Judge Michael Y. Ra'anan · Appeal

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Appeal at a glance

The appeal involved a review of an Administrative Judge's decision denying the Applicant a security clearance based on financial difficulties and personal conduct issues. The Applicant argued that the Judge erred in assessing the financial risk and in the conclusions regarding falsification of a security questionnaire. The Board affirmed the Judge's decision, finding no harmful error in the reasoning or conclusions reached.

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Appearances

y, Esq., Department Counsel

FOR APPLICANT

Robert S. Gardner, Esq.

Administrative Judge Roger C. Wesley issued a decision, dated May 23, 2001

Procedural History

diction 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 that Applicant's financial situation poses

a security risk; and (2) whether the Administrative Judge's adverse conclusions under Guideline E (Personal Conduct) are arbitrary, capricious, or

contrary to law.

<CENTER>Procedural History</ CENTER>

The Defense Office of Hearings and Appeals issued to Applicant a Statement of Reasons (SOR) dated October 3, 2000. The SOR was based

on Gu

Procedural History

eline F (Financial Considerations), Guideline H (Drug Involvement), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct).

A hearing was held on March 28, 2001. The Administrative Judge issued a written decision, dated May 23, 2001, in which he 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 Administrative Judge's adverse decision.

<CENTER>Scope of Review</CENTER>

On appeal, the Board does not review a case de novo. Rather, the Board addresses the material issues raised by the parties to determine whether

there is factual or legal error. There is no presumption of error below, and the appealing party must raise claims of error with specificity and

identify how the Administrative Judge committed factual or legal error. See Directive, Additional Procedural Guidance, Item E3.1.32. See, e.g.,

ISCR Case No. 00-0050 (July 23, 2001) at pp. 2-3 (discussing reasons why party must raise claims of error with specificity).

When an Administrative Judge's factual findings are challenged, the Board must determine whether "[t]he Administrative Judge's findings of fact

are supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary

evidence. In making this review, the Appeal Board shall give

Appeal Issues

ference to the credibility determinations of the Administrative Judge." Directive,

Additional Procedural Guidance, Item E3.1.32.1. The Board must consider not only whether there is record evidence supporting a Judge's

findings, but also whether there is evidence that fairly detracts from the weight of the evidence supporting those findings. See, e.g., ISCR Case

No. 99-0205 (October 19, 2000) at p. 2.

When a challenge to an Administrative Judge's rulings or conclusions raises a question of law, the Board's scope of review is plenary. See DISCR

Case No. 87-2107 (September 29, 1992) at pp. 4-5 (citing federal cases).

<CENTER>Appeal Issues</CENTER>

The Administrative Judge entered formal findings for Applicant under Guideline H (Drug Involvement) and Guideline J (Criminal Conduct) with

respect to Applicant's past history of prescription drug misuse. Those favorable formal findings are not at issue on appeal.

1. Whether the Administrative Judge erred by concluding that Applicant's financial situation poses a security risk. Applicant does not challenge the

Administrative Judge's findings of fact concerning his history of financial difficulties. However, Applicant does contend the Judge erred by

concluding Applicant's financial situation poses a security risk. In support of this contention, Applicant argues: (a) Applicant's 1985 bankruptcy is

mitigated because it occurred more than 15 years ago; (b) Applicant's most recent bankruptcy was extenuated by his military discharge and

ensuing medical problems; (c) Applicant's March 2001 bankruptcy discharge has eliminated his vulnerability to coercion, pressure or influence due

to financial need; and (d) Applicant's current financial situation poses no security risk under Guideline F.

(a) Applicant's argument about the significance of his 1985 bankruptcy lacks merit. After Applicant received a discharge of his debts in

bankruptcy in 1985, he again experienced recurring financial difficulties that eventually resulted in unpaid debts in excess of $200,000. Given the

record evidence in this case, the facts and circumstance of Applicant's 1985 bankruptcy (including the financial difficulties that led to that

bankruptcy) cannot be considered as separate or apart from his overall history of recurring financial difficulties that continued up to early 2001.

Applicant's argument is based on an artificial, strained interpretation of the record evidence that runs contrary to the whole person concept.

Accordingly, the Administrative Judge did not err by considering the 1985 bankruptcy in light of Applicant's recurring financial difficulties after that

bankruptcy.

(b) Applicant's argument about the extenuating circumstances surrounding his most recent bankruptcy does not demonstrate the Administrative

Judge erred. The Judge noted the extenuating circumstances surrounding Applicant's debts that led to his most recent bankruptcy. However, the

Judge also concluded that Applicant failed to demonstrate due diligence in dealing with those debts before he filed for bankruptcy again. The

Judge's reasoning on this point reflects a reasonable interpretation of the record evidence and does not demonstrate arbitrary or capricious action

by him. See, e.g., ISCR Case No. 00-0378 (August 15, 2001) at p. 4 (Judge must consider the evidence as a whole and decide whether the

favorable evidence outweighs the unfavorable evidence or vice versa).

(c) Applicant correctly notes that the Administrative Judge concluded that Applicant's recent discharge in bankruptcy eliminated any current

exposure he might have to coercion, pressure or influence due to unresolved debts. However, that conclusion did not end the Judge's analysis.

Indeed, the Judge considered Applicant's overall history of financial difficulties (including Applicant's financial difficulties after the 1985

bankruptcy) and decided that Applicant had not demonstrated a sufficient track record of financial reform to warrant a conclusion that Applicant

had put his financial troubles behind him so that they would not be likely to recur. The Judge's reasoning reflects a reasonable interpretation of the

record evidence and is consistent with his obligation to consider any evidence of rehabilitation and assess the likelihood of recurrence. See

Directive, Section 6.3.5, Sec

Conclusion

Emilio Jaksetic

Administrative Judge

Chairman, Appeal Board

Signed: Michael Y. Ra'anan

Michael Y. Ra'anan

Administrative Judge

Member, Appeal Board