KEYWORD: Guideline F
DIGEST: Both parties have demonstrated the Judge made errors which were ultimately harmless. 
Adverse decision affirmed.
CASENO: 08-06334.a1
DATE: 01/15/2010
DATE: January 15, 2010
In Re:
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Applicant for Security Clearance
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ISCR Case No. 08-06334
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Jennifer I. Goldstein, Esq., Department Counsel
FOR APPLICANT
Pro Se
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On March 2, 2009, 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
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requested a hearing.  On September 21, 2009, after the hearing, Administrative Judge Martin H.
Mogul denied Applicant’s request for a security clearance.  Applicant appealed pursuant to Directive
¶¶  E3.1.28 and E3.1.30.  Department Counsel cross-appealed pursuant to Directive ¶ E3.1.28.
Applicant raised the following issues on appeal: whether certain of the Judge’s findings of
fact are supported by substantial record evidence and whether the Judge’s adverse security clearance
decision is arbitrary, capricious, or contrary to law.  On cross-appeal, Department Counsel raises the
following issue: whether the Judge erred in concluding that three of the SOR allegations did not raise
Guideline F security concerns.  Finding no harmful error, we affirm.
A.  Applicant’s appeal:  
The Judge found that Applicant had numerous delinquent debts, for which she had not
demonstrated mitigation sufficient to meet her burden of persuasion under the standard set forth in
Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).  These debts were for such things as
cable services, consumer debts, etc.  Applicant contends that the Judge erred in concluding that one
of the debts, for medical services, had not been paid off.  A review of Government Exhibit (GE) 7,
Credit Report, demonstrates that Applicant had paid off this debt.  Therefore, the Judge’s finding on
this matter is error.  However, it is harmless in that, even if the error had not been made, the result
of the case would have been the same.  See ISCR Case No. 01-23362 at 2 (App. Bd. Jun. 5, 2006);
ISCR Case No. 03-09915 at 5 (App. Bd. Dec. 16, 2004); ISCR Case No. 01-11192 at 5 (App. Bd.
Aug. 26, 2002).  In light of the record as a whole, the Judge’s adverse conclusions are sustainable.
B.  Department Counsel’s cross-appeal:
The SOR contains three Guideline F allegations that describe acts of fraud by Applicant.  The
first of the three alleges that, in 1995, she admitted to using another person’s ATM card without the
owner’s authority.  The second alleges that in 1997 Applicant was charged with larceny of a personal
check, larceny of Government funds, and larceny of private property, for which she was debarred
from a military installation.  The third alleges that, in 1999, Applicant was arrested in a civilian
jurisdiction and charged with Financial Card Theft (felony) and Financial Card Fraud.  Applicant
pled guilty to the second count and the other was dismissed.  Concerning the first two of these
allegations, the Judge stated that neither allegation “gives any specific insight in this case.”  Decision
at 3.  Concerning the third, the Judge found that the Government had not provided any information
on this matter other than a report from the FBI describing the charges and the disposition.  In the
Analysis portion of the decision, the Judge did not explain why he apparently concluded that the
three allegations were not supported by substantial record evidence or otherwise did not set forth
Guideline F security concerns.
Department Counsel persuasively contends that the Judge erred.  As regards the first of the
three incidents, the 1995 ATM use, Applicant admitted to this allegation in her response to the SOR.
Accordingly, the Government was under no obligation to present evidence concerning this matter.
Nevertheless, the Government did present a report by a military criminal investigation organization,
GE 8, Criminal Investigation Report, dated October 12, 1995, at 12, 18.  1
Directive ¶ E3.19(d): “deceptive or illegal financial practices such as embezzlement, employee theft, check2
fraud . . . .and other intentional financial breaches of trust[.]”  
GE 9, Criminal Investigation Report, dated January 7, 1997.  3
Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a4
conclusion in light of all the contrary evidence in the same record.”  Directive ¶ E3.1.32.1.  
GE 10, FBI Identification Record, dated March 13, 2007.  5
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in which Applicant admitted to having used the victim’s ATM card.   This incident occurred on a1
military installation.  Applicant’s admission to the military investigators is corroborated by
statements of other witnesses, including the victim, who advised that she did not give Applicant
permission to use the card.  This allegation of fraudulent use of an ATM card, which Applicant has
admitted both in the report and in the response to the SOR, raises Financial Considerations
Disqualifying Condition (FCDC) 19(d).   The Judge’s failure to identify this disqualifying condition,2
and to analyze it in the context of Applicant’s burden of persuasion as to mitigation, is error.
Regarding the second fraud allegation, the 1997 larceny of a personal check, the Government
presented a report, also by a military criminal investigation organization.   All incidents pertinent3
to this allegation occurred on a military installation.  The report established that Applicant was
arrested in a stolen vehicle.  The vehicle contained a checkbook belonging to the victim, who had
reported it stolen along with her wallet.  Someone had written several checks on the victim’s bank
account without her permission.  The victim told the investigators that, after the theft, a female
contacted her saying that she would return the stolen wallet.  The victim and the female agreed to
meet at a location on base for the return of the property.  The victim did meet with a female on the
date in question, but she did not receive her wallet.  The victim and her husband, who was also
present, both independently identified Applicant in a photo lineup as the female they met in hopes
of getting back the wallet. The report concluded that there was probable cause to believe Applicant
stole the wallet and checkbook.  The U.S. Attorney declined to prosecute Applicant, though the
military commander debarred her from all of the service’s installations in the state.  The Judge did
not explain why he concluded that this evidence does not shed light on Applicant’s case, insofar as
the evidence tracks the SOR allegation in all of its particulars.  The Government has presented
substantial evidence  of this allegation, raising FCDC 19(d), and the Judge’s failure to treat it this4
way is error.
The third allegation in question, the 1999 incident in which Applicant was convicted of
Financial Card Fraud, is supported by a report prepared by the FBI.   This report demonstrates that5
Applicant was arrested for two apparently related offenses in July 1999.  She was tried in a state
District Court and was represented by a public defender.  She pled guilty to the lesser offense, a
misdemeanor, while the greater offense, a felony, was dropped.  Applicant was sentenced to 30 days
confinement, 12 months supervised probation, and a requirement to pay restitution.  Concerning this
allegation, the Judge stated only that the Government presented no further evidence beyond that in
See Federal Rule of Evidence 404(b), which holds that evidence of other wrongs may be admissible to prove6
motive, intent, knowledge, absence of mistake, etc.
In her Subject Personal Interview, contained in GE 4, Answers to Interrogatories, Applicant advised the7
interviewer that “she was never arrested, booked or processed while at the police department.  She was never summoned
to court on this matter.”  This is facially contradicted by GE 10.  Additionally, it appears to be inconsistent with
Applicant’s testimony at the hearing, in which she does not deny that she was arrested and admits that she was charged
and pled guilty, though she denied criminal intent.  Tr. at 48 - 52.  Additionally, Applicant made inconsistent statements
concerning the 1995 incident.  In GE 8, Applicant advised military investigators that she used the ATM card in order
to assist a third person in recovering money which was purportedly owed to the third person by the victim.  However,
at the hearing, she stated that she had used the ATM to purchase medication for the victim, who was ill.  Tr. at 44 - 46.
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the FBI report, which we construe as meaning that the Government had failed to meet its burden of
production.  However, under the facts of this case, Applicant’s conviction by a court of competent
jurisdiction, pursuant to a plea of guilty, of Financial Card Fraud is sufficient to meet the
Government’s burden.  Moreover, the Judge appears to have  treated this allegation in a somewhat
piecemeal fashion, rather than in the context of the record as a whole.  For one thing, he did not
discuss the fundamental similarities among the three allegations at issue in the cross-appeal, all of
which involve theft of a financial instrument–whether card or check–giving Applicant access to
another person’s bank account or line of credit.  These similarities warranted the Judge’s discussion.
Additionally, the similarities are pertinent on the issue of Applicant’s mens rea and undermine
Applicant’s denial of criminal intent.    Also, the Judge did not discuss Applicant’s inconsistent or6
contradicted statements, which affect the credibility of her denials of intentional wrongdoing.7
Again, the Government has presented substantial evidence of this allegation, raising FCDC 19(d),
and the Judge’s cursory treatment of this allegation is error.
In light of the errors demonstrated by Department Counsel’s cross-appeal, we might remand
the case to the Judge for a new decision in which he analyzes the extent to which Applicant met her
burden of persuasion as to mitigation.  However, in light of the fact that the Judge denied Applicant
a security clearance based on her delinquent debts, a decision which is sustainable on the record
before us, no purpose would be served by remand.  Therefore, we conclude that these errors are
ultimately harmless in that, even were they to be corrected, the outcome of the case would not
change.
Order
The Judge’s adverse security clearance decision is AFFIRMED.  
Signed: Michael Y. Ra’anan         
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: Jean E. Smallin                  
Jean E. Smallin
Administrative Judge
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Member, Appeal Board
Signed: James E. Moody                  
James E. Moody
Administrative Judge
Member, Appeal Board