KEYWORD: Guideline F
DIGEST: The Judge’s favorable findings of fact are supported by the record but do not support
his adverse conclusions.  Adverse decision remanded.
CASENO: 07-15321.a1
DATE: 12/15/2008
DATE: December 15, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 07-15321
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro Se
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On April 23, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of
the basis for that decision–security concerns raised under Guideline F (Financial Considerations) of
In support of his appeal, Applicant has submitted new evidence of his continued efforts to resolve his1
indebtedness, which the Board cannot consider.  See Directive ¶ E3.1.29. (“No new evidence shall be received or
considered by the Appeal Board”; see also ISCR Case No. 08-05372 at 2 (App. Bd. Nov. 26, 2008).  
The total amount of these debts, as alleged in the SOR and admitted by Applicant, is $139,915.2
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Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant
requested a hearing.  On August 26, 2008, after the hearing, Administrative Judge Charles D. Ablard
denied Applicant’s request for a security clearance.  Applicant filed a timely appeal pursuant to
Directive ¶¶  E3.1.28 and E3.1.30.
Applicant raised the following issue on appeal: whether the Judge’s adverse security
clearance decision is arbitrary, capricious, or contrary to law.   Finding error, we remand the case to1
the Judge.
Whether the Record Supports the Judge’s Factual Findings
A.  Facts
The Judge found that Applicant, who works for a security service doing business with the
DoD, invested in three rental properties.  He paid a total of $578,000 for them.  These sales were
subsequently discovered to have been part of a larger scheme to defraud people into purchasing real
property at inflated prices.  Applicant now owes deficiency judgments resulting from foreclosure
sales of the properties.   These debts have become delinquent.  Applicant contacted the company that2
purchased the mortgages to work out a payment program or otherwise settle the matter.  However,
the company has insisted on full payment of all three debts.  One of the persons who sold Applicant
the properties was found dead of a gunshot wound in 2006, either a suicide or murder.  Another
employee of the mortgage company that initially held the mortgage note has pled guilty to fraud.
Applicant has written a letter to the Attorney General of the state in question advising of the fraud.
At the close of the record he had not received a response.  Applicant holds two jobs, one earning him
$65,000.00 a year and the other $18,000.00.  He has no debts other than these deficiency judgments.
 B.  Discussion
The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they
are supported by substantial evidence–“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.”
Directive  ¶ E3.1.32.1.  “This is something less than the weight of the evidence, and the possibility
of drawing two inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.”  Consolo v. Federal Maritime
Comm’n, 383 U.S. 607, 620 (1966).  In evaluating the Judge’s findings, we are required to give
deference to the Judge’s credibility determinations.  Directive ¶ E3.1.32.
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Applicant his not challenged the Judge’s findings.  Therefore, they are not at issue in this
appeal.  
Whether the Record Supports the Judge’s Ultimate Conclusions
 A Judge is required to “examine the relevant data and articulate a satisfactory explanation
for” the decision, “including a ‘rational connection between the facts found and the choice made.’”
Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).  “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).  The Appeal
Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary,
capricious, or contrary to law.  Directive ¶¶ E3.1.32.3 and E3.1.33.3. 
Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong
presumption against the grant or maintenance of a security clearance.  See Dorfmont v. Brown, 913
F. 2d 1399, 1401 (9  Cir. 1990), cert. denied, 499 U.S. 905 (1991).  After the Government presentsth
evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those
concerns.  See Directive ¶ E3.1.15.  “The application of disqualifying and mitigating conditions and
whole person factors does not turn simply on a finding that one or more of them apply to the
particular facts of a case.  Rather, their application requires the exercise of sound discretion in light
of the record evidence as a whole.”  See, e.g., ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20,
2006).
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.  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.  See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2,
2006).
In evaluating Applicant’s case, the Judge concluded that the evidence would not support a
per se favorable application of the mitigating conditions.  Given the extent of the debt, this
conclusion is sustainable.  However, it is permissible for a Judge nevertheless to decide in an
Applicant’s favor in view of the whole person analysis.  See, e.g., ISCR Case No. 02-05110 at n 7
(App. Bd. Mar. 22, 2004); ISCR Case No. 99-0542 at 7 (App. Bd. Mar. 21, 2003).   In this case, the
Judge’s whole-person analysis states in pertinent part: “Applicant is a young adult with significant
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responsibility in his two jobs and for his family.  He is acting responsibly to make certain that he
provides for their support.  He was offered a real estate package that was too good to be true and it
turned out that it wasn’t.  He was completely inexperienced in real estate investment and was taken
in by the scheme [which the Judge previously described as fraudulent] in the belief that he could be
a property owner with rental income to pay the mortgages from vary little money invested.  However,
he has taken some steps to resolve the delinquent debts with the mortgage holder and, hopefully, will
continue to do so.”   Decision at 7.  These comments are supported by the Judge’s findings of fact
and by the record.  However, they do not support the Judge’s ultimate conclusion to deny Applicant
a clearance, in light of record evidence that his debts originated from an act of fraud perpetrated
against him, the fact that he has taken steps to resolve his debts, and the fact that the record discloses
no other debt attributable to him.  The Judge’s adverse security clearance decision is not sustainable.
The Board  remands the case for a new decision consistent with this discussion.        
Order
The Judge’s adverse security clearance decision is REMANDED.
Signed; Michael Y. Ra’anan           
Michael Y. Ra’anan
Administrative Judge
Chairman, Appeal Board
Signed: William S. Fields               
William S. Fields
Administrative Judge
Member, Appeal Board
Signed; James E. Moody              
James E. Moody
Administrative Judge
Member, Appeal Board