DATE: November 30, 2005
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SSN: -----------
Applicant for Security Clearance
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Peregrine D. Russell-Hunter, Esq., Chief Department Counsel
FOR APPLICANT
Pro Se
The Defense Office of Hearings and Appeals (DOHA) issued the Applicant a Statement of Reasons (SOR), dated December 8, 2003, which stated the reasons why DOHA proposed to deny or revoke Applicant's access to classified information. The SOR was based upon Guideline F (Financial Considerations) and Guideline E (Personal Conduct). Administrative Judge John Grattan Metz, Jr., issued an unfavorable security clearance decision, dated May 31, 2005.
Applicant appealed the Administrative Judge's unfavorable decision. The 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 issue: whether the Administrative Judge erred by concluding that the security concerns raised by Applicant's history of indebtedness had not been mitigated. For the reasons that follow, the Board affirms the Administrative Judge's decision.
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. Directive, Additional Procedural Guidance, Item E3.1.32. See also ISCR Case No. 00-0050 (July 23, 2001) at pp. 2-3 (discussing reasons why party must raise claims of error with specificity).
When the rulings or conclusions of an Administrative Judge are challenged, the Board must consider whether they are: (1) arbitrary or capricious; or (2) contrary to law. Directive, Additional Procedural Guidance, Item E3.1.32.3. In deciding whether the Judge's rulings or conclusions are arbitrary or capricious, the Board will review the Judge's decision to determine whether: it does not examine relevant evidence; it fails to articulate a satisfactory explanation for its conclusions, including a rational connection between the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference of opinion. See, e.g., ISCR Case No. 97-0435 (July 14, 1998) at p. 3 (citing Supreme Court decision). In deciding whether the Judge's rulings or conclusions are contrary to law, the Board will consider whether they are contrary to provisions of Executive Order 10865, the Directive, or other applicable federal law. Compliance with state or local law is not required because security clearance adjudications are conducted by the Department of Defense pursuant to federal law. See U.S. Constitution, Article VI, clause 2 (Supremacy Clause). See, e.g., ISCR Case No. 00-0423 (June 8, 2001) at p. 3 (citing Supreme Court decisions).
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 the same record. In making this review, the Appeal Board shall give deference 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, and whether the Judge's findings reflect a reasonable interpretation of the record evidence as a whole. Although a Judge's credibility determination is not immune from review, the party challenging a Judge's credibility determination has a heavy burden on appeal.
When an appeal issue 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).
If an appealing party demonstrates factual or legal error, then the Board must consider the following questions:
Is the error harmful or harmless? See, e.g., ISCR Case No. 00-0250 (July 11, 2001) at p. 6 (discussing harmless error doctrine);
Has the nonappealing party made a persuasive argument for how the Administrative Judge's decision can be affirmed on alternate grounds? See, e.g., ISCR Case No. 99-0454 (October 17, 2000) at p. 6 (citing federal cases); and
If the Administrative Judge's decision cannot be affirmed, should the case be reversed or remanded? (Directive, Additional Procedural Guidance, Items E3.1.33.2 and E3.1.33.3).
Whether the Administrative Judge erred by concluding that the security concerns raised by Applicant's history of indebtedness had not been mitigated. Applicant contends the Administrative Judge should have concluded that the security concerns raised by his history of indebtedness were mitigated by application of Financial Considerations Mitigating Conditions 1, (2) 3, (3) and 6. (4)
In support of that contention, Applicant: (a) argues the Judge erred with respect to several findings as to the nature and circumstances of several of Applicant's debts, (b) offers new evidence about his efforts to improve his financial situation, and (c) argues that the debts are old and he is current on his recent debts, that some of the debts are duplicates, and that some of the debts have been paid off and he is making inquiries and arrangements to pay the remaining valid debts. Applicant also notes that his work performance has been exemplary and he has held a clearance for many years without any incident. For the reasons that follow, we conclude the Judge's decision is sustainable.
The factual findings which Applicant challenges reflect permissible interpretations of the record evidence by the Administrative Judge. Applicant has not met his burden of demonstrating that the Administrative Judge's findings with respect Applicant's history of financial difficulties do not reflect a reasonable or plausible interpretation of the record evidence. As noted above, the Board does not review a case de novo. Considering the record evidence as a whole, the Judge's findings about Applicant's history of indebtedness are sustainable.
The Board may not consider new evidence on appeal. See Directive, Additional Procedural Guidance, Item E3.1.29. Therefore, we may not consider Applicant's additional explanations about his financial situation. Applicant's proffer of new evidence does not demonstrate error on the part of the Judge as his findings and conclusions cannot be reviewed by making reference to evidence that was not presented to him during the proceedings below.
The Administrative Judge's discussion of the Adjudicative Guidelines is somewhat unclear. However, the Board construes the decision below as showing the Judge concluded Financial Considerations Mitigating Condition 3 applied to some extent, but that Applicant had failed to present evidence sufficient to warrant application of Financial Considerations Mitigating Condition 6.
In this case, the Administrative Judge made sustainable findings that: (a) Applicant's financial difficulties arose in part because he was living beyond his means, (b) Applicant had previously had debts that were discharged in bankruptcy, (c) Applicant had multiple debts that had remained unpaid over many years even after he regained full-time employment in 1998, and (d) at the time the case was submitted for decision, Applicant still had outstanding delinquent debts despite telling an investigator in March 2002 that he would start paying his overdue debts soon. In light of the foregoing, the Administrative Judge could reasonably conclude that Applicant's financial problems were recent and ongoing, and that Applicant had not demonstrated his financial difficulties were behind him or would be under control anytime soon. Therefore, the Judge was not required, as a matter of law, to conclude Applicant's history of financial difficulties was fully mitigated by application of Financial Considerations Mitigating Conditions 1, 3, and 6.
The favorable record evidence cited by Applicant is not sufficient to demonstrate the Administrative Judge's decision is arbitrary, capricious, or contrary to law. As the trier of fact, the Judge had to weigh the evidence as a whole and decide whether the favorable evidence outweighed the unfavorable evidence or vice versa, and whether Applicant had presented evidence that was sufficient to refute, extenuate, or mitigate the security concerns raised by Applicant's history of indebtedness. See Directive, Additional Procedural Guidance, Item E3.1.15. Applicant's disagreement with the Judge's weighing of the record evidence is not sufficient to demonstrate the Judge weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. There is sufficient record evidence to support the Judge's conclusions under Guideline F (Financial Considerations).
Applicant has failed to demonstrate error below. Therefore, the Board affirms the Administrative Judge's adverse security clearance decision.
Signed: Emilio Jaksetic
Emilio Jaksetic
Administrative Judge
Chairman, Appeal Board
Signed: Michael Y. Ra'anan
Michael Y. Ra'anan
Administrative Judge
Member, Appeal Board
Signed: William S. Fields
William S. Fields
Administrative Judge
Member, Appeal Board
1. The Administrative Judge found in favor of Applicant with respect to Guideline E (Personal Conduct). That favorable formal finding is not at issue on appeal.
2. "The behavior was not recent" (Directive, Adjudicative Guidelines, Item E2.A6.1.3.1).
3. "The conditions that resulted in the behavior were largely beyond the person's control (e.g., loss of employment, a business downturn, unexpected medical emergency, or a death, divorce or separation)" (Directive, Adjudicative Guidelines, Item E2.A6.1.3.3).
4. "The individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts" (Directive, Adjudicative Guidelines, Item E2.A6.1.3.6).