KEYWORD: Guideline F
DIGEST: Applicant relied on the statute of limitations as a means of addressing his debt.  The
Judge’s lengthy discussion of societal policy does not explain why, under the facts of this case,
Applicants decision not pay his debts demonstrates good judgment, trustworthiness and
reliability.  Favorable decision reversed 
CASENO: 08-01122.a1
DATE: 02/09/2009
DATE: February 9, 2009
In Re:
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Applicant for Security Clearance
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ISCR Case No. 08-01122
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Kathryn D. MacKinnon, Deputy Chief Department Counsel
FOR APPLICANT
Pro Se
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The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On May 27, 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
Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant
requested a hearing.  On October 21, 2008, after the hearing, Administrative Judge Mary E. Henry
granted Applicant’s request for a security clearance.  Department Counsel filed a timely appeal
pursuant to Directive ¶¶  E3.1.28 and E3.1.30.
Department Counsel raised the following issues on appeal: whether the Judge’s whole-person
analysis is erroneous; whether the Judge’s application of the Guideline F mitigating conditions is
erroneous; and whether the Judge’s adverse security clearance decision is arbitrary, capricious, and
contrary to law.  Finding error, we reverse.
Whether the Record Supports the Judge’s Factual Findings
A.  Facts
Applicant is a business operations manager for a Defense Department Contractor.  He began
working for the company three years ago, following completion of law school.
In the late 1990s Applicant worked for a credit and financial company.  Although he thought
he was going to be a financial and investment counselor, he was, in fact, more of an insurance
salesman.  He received little income from commissions.  For six to eight months he attempted to
develop a client base from lists of names which the company provided him.  This too was
insufficiently remunerative, so he resigned.  Due to his insufficient income while working for this
company, Applicant paid his living expenses with credit cards.  He also used credit cards to pay the
costs of various licensing examinations he had taken.
Subsequently, Applicant began working for an information technology (IT) company.
Although he was able to pay his expenses, the company laid him off.  He took a temporary position,
which lasted for one month, and another in a different city.  Applicant realized that this latest
employer “had problems” and that the job would not last.  Decision at 3.  Therefore, he decided to
attend law school.  He graduated in 2005.  
Following his first job loss, Applicant realized that he would have difficulty paying off his
debts.  He contacted the credit card companies to develop a repayment plan, but “they refused to
work with him.”  Id.  He got in touch with a debt management company, which developed a plan for
him to repay his debts.  However, his employment was temporary and he lacked a steady salary, so
he declined to sign a contract with the company.  “He decided not to make his credit card payments
until his employment situation stabilized.  He made his last payments on the five credit card debts
alleged in the SOR around March 2001.  He has not sought any additional credit counseling.”  Id.
The Judge noted that the majority of the debts on the SOR are no longer listed on his credit reports.
Applicant acknowledges that these debts are his and that they are unpaid.    
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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 ¶ E3.1.32.1. 
To the extent that Department Counsel’s brief challenges the Judge’s findings of fact, such
challenges will be included in the discussion below. 
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
See, for example, Government Exhibit 2, Answers to Interrogatories, which includes a summary of Applicant’s1
personal subject interview.  In this document he is reported as saying to the interviewer “Subject does not intend to pay
the amount owed on all of the accounts that became late around 2001.  The subject is waiting for the seven-year period
of owing money to those delinquent accounts to come to a close.  The subject . . . has read on the website of the Federal
Trade Commission that there is a time limit on the statute of limitations.  Once an account is sold to a creditor, the
creditor cannot legally charge anyone for the amount in question.”   The Judge acknowledged that Applicant had not
sought bankruptcy protection but characterized the running of the statute of limitations as “another legally acceptable
method for eliminating old, unpaid debt.”  Decision at 11.  Neither the authority cited by the Judge, nor the record,
support a conclusion that bankruptcy, which entails the possibility of some repayment to creditors, is of the same security
significance as a decision not to pay debt.
See, e.g., Tr. at 44, in which Applicant acknowledges that his actions in response to his debts may not have2
been responsible.  
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Directive, or other applicable federal law.  See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2,
2006).
In holding in favor of Applicant, the Judge relied in large measure upon her conclusion that
enforcement of the credit card debts reflected in the SOR was barred by the statute of limitations.
Department Counsel persuasively argues that the record does not contain sufficient information as
to the terms of the various credit card contracts so as to permit a reasoned determination as to which
state’s statute of limitations applies.  As a consequence, Department Counsel argues, the Judge’s
analysis is merely speculative.  While this argument has merit, more to the point is the question of
whether the Judge erred in concluding that Applicant had met his burden of persuasion as to
mitigation.  
The security concern raised by Guideline F is as follows: “Failure or inability to live within
one’s means, satisfy debts, and meet financial obligations may indicate poor self-control, lack of
judgment, or unwillingness to abide by rules and regulations, all of which can raise question about
an individual’s reliability, trustworthiness and ability to protect classified information.”   Directive
¶ E2.18.  The Board notes the Judge’s findings, and record evidence, to the effect that Applicant had
a sporadic employment history in the late 1990s and early 2000s, during at least part of which time
he paid his living expenses, as well as expenses associated with certain licensing exams, with credit
cards.  This fact alone could cause a reasonable person to question Applicant’s judgment.  Of course,
the Judge is bound to consider all of the record evidence, including evidence as to the nature, extent,
and duration of an applicant’s debts.  See, e.g., Directive ¶ E3.1.8. (A clearance decision is “based
on the hearing record.”) Applicant claimed, for example, that some of the debts attributed to him
were not legitimately his, although he provided little corroboration for this assertion.  However, in
this case Applicant appears to have relied upon the statute of limitations as a means of addressing
his debt rather than to take affirmative steps such as working with the debt management company,
seeking bankruptcy protection, etc.   The Judge’s lengthy discussion of the societal policy underlying1
the statute of limitations does not explain why, under the facts of this case, Applicant’s decision not
to pay his creditors demonstrates good judgment, trustworthiness, or reliability, which is at the heart
of the Guideline F security concern.   Viewed in light of the entire record, the evidence which2
Applicant presented does not support a conclusion that he has met his burden of persuasion as to
Department Counsel notes that there is ample precedent to make the Judge aware that her analysis and3
application of the statute of limitations in a Guideline F case was erroneous.  Indeed, this case is the fifth wherein the
Board has had to discuss the same error by the same Judge.  See ADP Case No. 06-14616 at 3 (App. Bd. Oct. 18, 2007),
ISCR Case No. 07-08049 at 5 (App. Bd. Jul. 22, 2008), ADP Case No. 07-13041 at 5 (App. Bd. Sep. 19, 2008), and
ISCR Case No. 07-11814 at 2 (App. Bd. Dec. 29, 2008).   No benefit accrues from persistent disregard of agency policy
and a superior tribunal.  
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mitigation.   The Judge’s conclusion that Applicant has demonstrated that “it is clearly consistent3
with the national interest to grant Applicant eligibility for a security clearance” is not supportable.
Decision at 13.
Order
The Judge’s favorable security clearance decision is REVERSED.
Signed: Michael Y. Ra’anan           
Michael Y. Ra’anan
Administrative Judge
Chairman, Appeal Board
Signed: Jeffrey D. Billett                
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: James E. Moody                
James E. Moody
Administrative Judge
Member, Appeal Board