KEYWORD: Guideline F
DIGEST: The Judge made factual findings about Applicant’s taxes which were not alleged in the
SOR.  The Judge did not discuss those findings in his analysis.  There is no presumption of error. 
The Board will not presume that the Judge used the findings improperly.  Adverse decision
affirmed.
CASENO: 10-00922.a1
DATE: 11/03/2011
DATE: November 3, 2011
In Re:
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Applicant for Security Clearance
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ISCR Case No. 10-00922
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., 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 March 9, 2011, 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 August 22, 2011, after the hearing, Administrative Judge Michael H.
Leonard denied Applicant’s request for a security clearance.  Applicant timely appealed pursuant
to the Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raises the following issue on appeal: whether the Judge’s decision was arbitrary,
capricious, or contrary to law.  For the following reasons, the Board affirms the Judge’s unfavorable
decision. 
The Judge made the following findings of fact: Applicant is 47 years old and he has some
college and military education.  He is married, and he and his wife provide financial support for their
two children, ages 19 and 20.  He has had multiple moves and multiple jobs over the years due to
military assignments.  He wife is employed as a federal civilian employee.  Altogether, Applicant
and his wife earn an annual gross income of approximately $100,000 to $150,000.  Applicant has
a history of delinquent debts.  Concerning the eight delinquent debts alleged in the SOR, Applicant
has paid or settled three debts for about $3,320 in total.  Five debts remain unresolved for a total of
about $13,000.  In addition to the matters listed in the SOR, Applicant has owed back taxes to the
IRS.  As of August, 2010, Applicant completed an installment agreement to repay back taxes for tax
years 2003 and 2006 for a total of about $2,356.  Applicant may also owe $4,000 in back taxes for
tax year 2010, but the matter is pending.  Concerning financial assets, Applicant and his wife have
unknown, but likely small, amounts of money in 401(k) accounts.  They also have a couple thousand
dollars in a bank account but otherwise have no financial assets.  
The Judge reached the following conclusions: The evidence here supports a conclusion that
Applicant has a history of financial problems or difficulties, and these matters are ongoing.  All of
the mitigating conditions have been considered in light of the evidence as a whole, and none,
individually or in combination, is sufficient to rebut, explain, extenuate or mitigate the security
concerns stemming from Applicant’s history of financial problems or difficulties.  Although
Applicant and his wife are now earning more than $100,000 annually, they have little in the way of
financial assets.  This is relevant concerning Applicant’s ability to repay the delinquent debts.  His
delinquent debts are largely unresolved.  During the hearing, Applicant came across as lacking in
command or knowledge of his finances, which does not inspire confidence, and it suggests a degree
of unwillingness to repay.  What is missing here is responsible conduct coupled with a good-faith
effort during the recent past to repay or otherwise resolve his delinquent debts.  His good intentions
and honorable military service are insufficient to mitigate the security concerns raised by his
ongoing financial problems.  
Applicant states that he disagrees with the Judge’s findings on three of the SOR allegations.
On one of the allegations, Applicant indicates that he has obtained a document post-hearing that
represents a settlement with the creditor.  On another, he claims that there was a mix-up on the
account number, payment arrangements have been made, and he has been successfully paying on
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the account for some months.  On the other allegations, Applicant maintains that the charges are
possibly fraudulent, and that he has attempted to contact the creditor, with negative results.
Applicant’s assertions do not establish error on the part of the Judge.
A number of Applicant’s assertions about his debts involve new matters not presented or
asserted below.  The Board cannot consider new evidence on appeal.  See Directive ¶ E3.1.29.  Also,
Applicant’s assertions are reiterations of claims about his finances made below.  These assertions
constitute nothing more than a disagreement with the Judge’s reading of the evidence.  After a
review of the Judge’s decision and the evidence, the Board concludes that the Judge’s findings of
fact and conclusions regarding Applicant’s finances are reasonably supported by the record.  A
party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different
interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or
reached conclusions in a manner that is arbitrary, capricious, or contrary to law.  See, e.g., ISCR
Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007).  
Applicant takes issue with the Judge’s use of information about his income taxes in the
decision.  Applicant correctly notes that the issues with his income taxes were not alleged in the
SOR.  Applicant indicates his impression that this was an attempt “to add further negative
information on granting my security clearance.”  Given the state of the Judge’s decision, Applicant’s
concern is not a frivolous one.
It is appropriate for a Judge to consider conduct and matters not alleged in the SOR for such
limited purposes as evaluating a claim of extenuation, mitigation or changed circumstances, and
when weighing relevant and material information under the whole person concept.  See, ISCR Case
No. 09-08108 at 6 (App. Bd. Feb. 15, 2011).  Because the legitimate use of such evidence is
circumscribed, it is important for Judges, once they have chosen to incorporate such evidence into
their findings of fact, to provide some analysis indicating how those findings relate to their
conclusions and the ultimate disposition of the case.  Here, although the Judge made findings in
some detail about Applicant’s owing of back taxes for several years, there is no mention of these
facts in the Judge’s analysis or conclusions.  The Judge’s failure to discuss the factual findings about
taxes in his analysis prompts the issue of whether the evidence was used for a legitimate purpose.
However, there is no presumption of error below, and the Board will not presume that the Judge
used the evidence improperly in the absence of indications that he did so.  Also, in this case, the
evidence of Applicant’s financial difficulties was of sufficient strength, and the Judge’s articulation
of such potent factors as the weakness of the case for mitigation and Applicant’s lack of command
and knowledge of his finances were of sufficient magnitude, to provide a reasonable basis for the
Judge’s unfavorable security clearance decision, irrespective of any consideration of the evidence
of back taxes.        
The Board does not review a case de novo.  As the trier of fact, the Judge has to weigh the
evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence,
or vice versa.  See, e.g., ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007).  After reviewing
the record, the Board concludes that the Judge examined the relevant data and articulated a
satisfactory explanation for his decision, notwithstanding the matter noted above,“including a
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‘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).  Therefore, the Judge’s ultimate
unfavorable security clearance decision is sustainable.
Order
The decision of the Judge denying Applicant a security clearance is AFFIRMED.
Signed: Michael Y. Ra’anan    
Michael Y. Ra’anan
Administrative Judge
Chairperson, 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