KEYWORD: Guideline F
DIGEST: Given the Judge’s application of the disqualifying conditions and the implicit ascribing
of responsibility for the debts to Applicant, the Judge could not logically apply the mitigating
conditions in light of Applicant’s continued and uncorroborated denial of responsibility for the
debts.  Favorable decision reversed.
CASENO: 09-08550.a1
DATE: 02/25/2011
DATE: February 25, 2011
In Re:
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Applicant for Security Clearance
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ISCR Case No. 09-08550
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Alison O’Connell, Esq., 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 July 20, 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).  Applicant
requested a hearing.  On November 9, 2010, after the hearing, Administrative Judge Arthur E.
Marshall, Jr., 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 issues on appeal: whether certain of the Judge’s
findings of fact were supported by substantial record evidence; whether the Judge erred in his
application of the mitigating conditions; and whether the Judge’s whole-person analysis was
erroneous.  Consistent with the following discussion, we reverse the decision of the Judge.
Facts
The Judge made the following pertinent findings of fact:
Applicant and his wife separated in 1992 and divorced in 1996.  In October 2009, during a
security clearance interview, Applicant was advised of the existence of two collection accounts in
his name.  Applicant attributes the underlying debt to his ex-wife. He has done nothing to dispute,
resolve, or address them, because he did not believe they would affect him.  A credit report shows
one account, for $5,845, was opened in 2007 and the other, for $32,973 was opened in 2006 with
the date of last activity in 2002.  Because they are collection accounts it cannot be determined when
the underlying debt was first acquired.
A credit report from May 2010 does not show either of the two collection accounts.
Applicant’s attorney provided an opinion  that the debts are not collectable under state law.
Applicant lives well within his means.
We review the Judge’s findings of facts to determine 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).
Department Counsel notes that the Judge relied heavily on a favorable credibility
determination of Applicant.  Such a determination, however, is not a substitute for record evidence.
See, e.g., ISCR Case No. 07-13696 at 5 (App. Bd. Feb. 9, 2009).  In this case there is no
documentation that corroborates Applicant’s claim the debts are his ex-wife’s.  For the larger debt
there is no documentary evidence that would corroborate dating the debt back to the marriage.  For
the smaller debt there is no documentary evidence which would support dating the debt back to prior
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to the separation.  Therefore, to the extent that the Judge found that the debt’s are not really
Applicant’s responsibility, those findings are not sustainable.  Also, to the extent the Judge relied
on the non-presence of debts on a recent credit report as indicia of some sort of corrective action,
such a finding is not sustainable, given Applicant’s acknowledgment that he has not acted to dispute
the debts.
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 erroneous, 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, e.g., ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun.
2, 2006).
The Judge concluded that Applicant acquired the two debts in the 1990's but failed to address
them and invoked appropriate disqualifying conditions.  Then the Judge extended favorable
1Directive, Enclosure 2 ¶ 20(a): “the behavior happened so long ago, was so infrequent, or occurred under such
circumstances that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness,
or good judgment[.]”  
2Directive, Enclosure 2 ¶ 20(b): “the conditions that resulted in the financial problem were largely beyond the
person’s control . . . and the individual acted responsibly under the circumstances[.]”
3Directive, Enclosure 2 ¶ 20(c): “the person has received or is receiving counseling for the problem and/or there
are clear indications that the problem is being resolved or is under control[.]”
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application of  Financial Considerations Mitigating Condition (FCMC) 20(a),1  FCMC 20(b),2 and
FCMC 20(c).3 
Department Counsel points out that, given the Judge’s application of the disqualifying
conditions (thus ascribing responsibility for the debts to Applicant), Applicant’s continued and
uncorroborated denial of responsibility for the debts, and his failure to address them in any way,
the Judge could not logically apply any of the three mitigating conditions in Applicant’s favor.  We
agree.  Furthermore, to the extent the Judge is focused on Applicant’s advice of counsel, he in error.
Repeatedly Applicant’s counsel qualified his knowledge of the case with language such as
“apparently” or Mr. [Applicant] asserts.  Applicant’s attorney concluded by saying that the creditors
would have had to have sued within a certain period and that Applicant asserts that he has not been
sued.  The Board has repeatedly held that non-collectibility of a debt does not preclude consideration
of the debt and circumstances surrounding it in a security clearance adjudication.  See, e.g., ISCR
Case No. 10-03656 at 3 (App. Bd. Jan 19, 2011).
Finally, Department Counsel persuasively argues that the Judge’s whole-person analysis does
not provide an additional reason to grant Applicant a clearance but, rather, essentially restates his
mistaken analysis of the mitigating conditions.  The record, viewed as a whole, does not support the
Judge’s favorable decision.  The Judge’s decision is not sustainable. 
 
Order
The Judge’s favorable security clearance decision is REVERSED.       
Signed: Michael Y. Ra’anan           
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: Jeffrey D. Billett                
Jeffrey D. Billett
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Administrative Judge
Member, Appeal Board
Signed: James E. Moody                  
James E. Moody
Administrative Judge
Member, Appeal Board