KEYWORD: Guideline F
DIGEST: Applicant’s unemployment was a result of his discharge from the Navy for
misconduct.  Accordingly, his financial difficulties could not be attributed to causes outside his
control.  His efforts to pay his debts were unreasonably dilatory.  Favorable decision reversed.
CASE NO: 09-05700.a1
DATE: 02/24/2011
DATE: February 24, 2011
In Re:
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Applicant for Security Clearance
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ISCR Case No. 09-05700
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Melvin A. Howry, Esq., Department Counsel
FOR APPLICANT
Pro se
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On February 19, 2010, 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).  DOHA
subsequently amended the SOR, raising security concerns under Guideline E (Personal Conduct).
Applicant requested a hearing.  On October 19, 2010, after the hearing, Administrative Judge
Darlene D. Lokey Anderson granted Applicant’s request for a security clearance.  Department
Counsel appealed pursuant to Directive ¶¶  E3.1.28 and E3.1.30.
Department Counsel raised the following issue on appeal: whether the Judge’s application
110 U.S.C. § 815.
210 U.S.C. § 887: “Any person subject to this chapter . . . who through neglect or design misses the movement
of a ship, aircraft, or unit with which he is required in the course of duty to move shall be punished[.]”  
of the mitigating conditions was unsupported by the record evidence.  Consistent with the following
discussion, we reverse the decision of the Judge.
Facts
The Judge found that Applicant is an Electronics Technician for a Defense contractor.  He
has a GED and two years of college.  Applicant purchased two rental properties with money he
inherited from his grandmother.  Subsequently, in 2001, he joined the U.S. Navy.  He served in the
Navy from 2001 until 2005.  During this time, he bought another piece of real property, a personal
residence.  
In 2004, Applicant experienced emotional problems while assigned to a ship.  He also found
it difficult to sleep because of his height, which was greater than the length of the beds.  On two
occasions, when the ship set out to sea for training exercises, Applicant stayed home.  After the first
occasion he was given non-judicial punishment (NJP)1 under the Uniform Code of Military Justice
(UCMJ), for the offense of Missing a Movement.2  The punishment consisted of restriction to the
ship.  Following the second offense, he received NJP once again.  The punishment consisted in a
reduction in rank and bread and water for three days.  
After the second offense, Applicant was discharged from the Navy.  His service was
characterized as Under Other Than Honorable Conditions (OTH).  After his discharge, he had a
difficult time finding employment.  He was not able to keep up with the mortgage payments on the
three properties.  He tried to sell them, but was not able to do so.  The three properties went into
foreclosure during 2008 and 2009.  Applicant was unemployed following his discharge from the
Navy.  He found work in 2006 but was again unemployed later that year.  He had another period of
unemployment from September 2008 until February 2009.  He did not make payments on his debts
during his periods of unemployment.  
Applicant has several delinquent debts which are alleged in the SOR.  Applicant had failed
to file federal and state taxes for tax years 2005, 2006, and 2007.  The SOR alleged a debt of
$19,432 owed to the state.  This debt has been satisfied through a wage garnishment action.
Applicant has filed his income tax returns for the years in question.  Applicant owed $4,582 on a
credit card that he had used for paying living expenses.  By the close of the record, this debt had
been satisfied.  He owed $8,096 on another credit card.  He has entered into an agreement to make
a down payment after the hearing and then pay the debt off in monthly increments.  Finally, he owed
$1,884 to a creditor, which he paid in full in March 2010.  He and his fiancée are living with her
parents in order to save money to purchase a house.  He is paying both his and his fiancée’s monthly
expenses. 
Applicant enjoys a good reputation for work performance, trustworthiness, and integrity.
While in the Navy he received the Navy and Marine Corps Achievement Medal.
3An OTH is the most severe administrative service characterization, imposed for “one or more acts or omissions
that constitute a significant departure form the conduct expected of members of the Naval Service.”  Naval Military
Personnel Manuel 1910-304.  AE I, Applicant’s Certificate of Discharge, shows his re-enlistment code to be R-4.  Such
a code means that the member is not eligible to re-enlist and waivers are not authorized.  Navy Recruiting Manual
Enlisted COMNAVCRUITCOMINST 1130.8F.
Discussion 
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 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991).  After the Government presents
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 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).
Department Counsel argues that the Judge’s favorable decision is not supported by the record
evidence, viewed as a whole.  This argument is persuasive.  We note the Judge’s findings and record
evidence of the following, which are not consistent with the Judge’s favorable decision:
Applicant was involuntarily discharged from the Navy for misconduct, i.e., two incidents of
missing his ship’s movement.  The voyages were each of two weeks’ duration.3  Concerning the
reason for his actions, Applicant testified, “I just didn’t want to be there.  I didn’t have anything to
do there . . . I felt so incredibly trapped and anxious and I went to Medical and . . . tried to see what
4Directive, Enclosure 2 ¶ 17(c): “the offense is so minor, or so much time has passed, or the behavior is so
infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the
individual’s reliability, trustworthiness, or good judgment[.]”  
they could do for me . . . I just felt very anxious, like I couldn’t breathe.  I was extremely agitated
all the time.”  Tr. at 49-50.  The record raises a real possibility that, “if faced with a work situation
in which he is unhappy, [Applicant] would, again, act in a manner that best suits his self interests
and is detrimental to the Government’s interests.”  Department Counsel Brief at 8.  The testimony
quoted above is not consistent with the Judge’s conclusion that “it is unlikely that . . . Applicant’s
misconduct . . . would recur.”  Decision at 8.  It undermines the Judge’s favorable application of
Personal Conduct Mitigating Condition (PCMC) 17(c).4
The record supports a conclusion that Applicant’s financial problems originated from his
own conduct, i.e., his purchase of multiple properties and his Navy discharge for misconduct, rather
than from circumstances outside his control.  As Department Counsel notes in his brief, Applicant
was actually overextended prior to joining the Navy. 
Applicant’s significant tax debt was resolved through a wage garnishment rather than a
voluntary effort at debt repayment.  See ISCR Case No. 08-06058 at 6 (App. Bd. Sep. 21, 2009)
(“[S]atisfaction of a debt through the involuntary establishment of a creditor’s garnishment is not
the same as, or similar to, a good-faith initiation of repayment by the debtor.”)  His other significant
debt remains substantially unresolved at the close of the record.  
Applicant has devoted funds to paying off his fiancée’s debts rather than his own and to
saving money for purchasing another house.  Department Counsel persuasively argues that a house
is a discretionary purchase and that, under the facts of this case, Applicant’s relative neglect of his
outstanding credit card debt reflects poorly upon his judgment.
Department Counsel notes that Applicant’s security clearance application (Government
Exhibit 1) demonstrates that he was aware of his financial problems at the time he submitted it, in
February 2009.  However, he did not begin paying on his delinquent debts until late 2009.
Department Counsel persuasively argues that this was an unreasonably dilatory response to
Applicant’s financial problems, which undercuts Applicant’s efforts to demonstrate mitigation. 
The record as a whole does not support a conclusion that Applicant has met his burden of
persuasion under the standard set forth in Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)
(“The general standard is that a clearance may be granted only when ‘clearly consistent with the
interests of the national security’”).  The Judge’s favorable decision under Guideline E and
Guideline F is not sustainable.
Order
The Judge’s favorable security clearance decision is REVERSED.  
Signed: Jean E. Smallin               
Jean E. Smallin
Administrative Judge
Member, 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