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KEYWORD: Guideline F; Guideline E
DIGEST: Appeal Board cannot consider new evidence on appeal.  A Judge is presumed to have
considered all of the evidence in the record.  An ability to argue for an alternative interpretation
of the evidence is not sufficient to demonstrate error.  Adverse decision affirmed. 
CASE NO: 11-07821.a1
DATE: 02/25/2013
DATE: February 25, 2013
In Re:
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Applicant for Security Clearance
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ISCR Case No. 11-07821
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Alan V. Edmunds, Esq.
The Department of Defense (DoD) declined to grant Applicant a security  clearance.  On
June 27, 2012, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that
decision—security concerns raised under Guideline F (Financial Considerations) and Guideline E
(Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended)
(Directive).  Applicant requested a hearing.  On November 16, 2012, after the hearing, Defense
Office of Hearings and Appeals (DOHA)Administrative Judge LeRoy F. Foreman denied
Applicant’s request for a security clearance.  Applicant timely appealed pursuant to the Directive
¶¶ E3.1.28 and E3.1.30.
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Applicant raises the following issues on appeal: (1) whether the Judge failed to consider
record evidence; and (2) whether the Judge erred in his application of mitigating factors.  For the
following reasons, the Board affirms the Judge’s unfavorable decision. 
The Judge made the following findings of fact: Applicant is 55 years old.  He has been
married since 1989 and he has three minor children.  He owns a house in Greece given to him by
his father which is worth $175,000.  Applicant earns $127,750 per year.  His delinquent debts
include a $96 medical bill, credit card debts in the amounts of $22,370, $10,482, $6,907, $13,299,
and $48,000, and a delinquent home mortgage in the amount of $68,991.  In June or July 2010,
Applicant enrolled in a debt consolidation program after he received letters from collection
companies.  Two of the creditors would not deal with Applicant’s debt consolidation company.
Applicant was unable to resolve these debts by contacting the creditors directly.  He made payments
to the debt consolidation company until about December 2010, when he terminated the relationship
because the fees were too high and the debts were not being paid.  
In January 2012, Applicant accepted an offer to settle the $6,907 credit card debt for $3,600.
As of the date of the hearing, he had timely made nine out of twenty four monthly payments of $150.
In May 2012, Applicant accepted an offer to settle the $22,370 debt for $13,422.  As of the date of
the hearing, he had timely made the first four monthly payments of $560.  By May 2012, Applicant
had made no payments on the $10,482 debt, the $13,299 debt, and the $48,000 debt.  In October
2012, Applicant indicated that he disputed these debts.  The documentation of the disputes does not
reflect the basis of the dispute.  Applicant simply stated, “My account balance is incorrect.”  He
testified that he will begin making payments as soon he and the creditors agree on the balances due.
Applicant provided evidence of his unsuccessful attempts to obtain documents pertaining to the
$48,000 debt.  The records he submitted dated from August 2010 and show a balance of $36,869,
of which $13,212 was past due.  He had not received responses relating to his disputed debts as of
October 23, 2012, the date the record closed.    
The delinquent home mortgage resulted from the 2004 purchase of an $845,000 house.  The
initial interest rate was 2.5% but it increased to 8% after the first year.  He testified that he knew he
had an adjustable-rate mortgage, but he did not realize at the time that there was no cap on the
interest rate.  Applicant’s spouse, who had been earning about $45,000 per year, was laid off in
2009.  Applicant was unsuccessful in getting a loan modification.  He then entered into a long period
of negotiations with the mortgage company.  He claims that the mortgage company was guilty of
fraud.  He sued the mortgage company and the suit was settled, although it is not clear what relief,
if any, Applicant received as a result of the lawsuit.  His most recent credit report reflects that his
monthly payments are $2,875, but it does not reflect any reduction in the principal amount of the
loan.  
When Applicant submitted his security clearance application (SCA) in October 2010, he
answered “no” to all questions pertaining to financial difficulties.  He told the security investigator
that he answered “no” because none of the debts had been referred for collection, none of his credit
cards had been suspended, and he did not believe his debts were delinquent because he was engaged
in negotiations to keep them from becoming delinquent.  At the hearing, Applicant testified that he
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believed that all his accounts were current when he submitted his SCA.   
The Judge reached the following conclusions: Applicant’s debts are numerous and most of
them are unresolved.  Some of the delinquencies arose under circumstances unlikely to recur, and
Applicant acted responsibly regarding his mortgage and some of the credit card debts.  However,
he has not acted responsibly regarding the $96 medical debt, the $10,482 debt, the $13,299 debt and
the $48,000 debt.  These debts are not resolved.  Regarding disputed debts, Applicant offered no
testimonial or documentary evidence showing why he thought the balances were incorrect or what
he believed the balances should be.  The timing of his disputes and the absence of any articulation
of the basis for the dispute suggests that he is using the dispute mechanism as a bargaining tool to
negotiate a settlement for less than the full amount due.  Applicant deliberately falsified his answers
to two of the four SCA questions alleged in the SOR.  The falsifications were not minor because
they undermined the integrity of the security clearance process.  They were recent, and he persisted
in his falsifications as recently as his January 2011 security interview.  Applicant has not mitigated
the security concerns based on his financial problems and his personal conduct.  
Applicant asserts that the Judge’s decision disregards record evidence, including
documentary evidence that he submitted, and that the Judge did not properly consider the mitigating
evidence under Guideline F.  There are numerous assertions made in Applicant’s appeal brief that
are not supported by record evidence.  Chief among these are Applicant’s statements that the $96
medical bill, the $10,482 debt, and the $13,299 debt have been paid in full.  There is no record
evidence to support these assertions and it was not Applicant’s position that he had paid these debts
at the point of the close of the record in this case.  The Board cannot consider new matters not
contained in the record.  See Directive ¶ E3.1.29.        
Applicant argues that the Judge failed to consider record evidence, asserting variously that
the Judge did not consider efforts that Applicant has made to contact his creditors, did not consider
proof of Applicant’s legitimate disputes involving the unresolved debts, did not consider the fact that
Applicant had a 401k account valued at $550,000 which he could use to retire debts, and did not
consider Applicant’s exemplary life history, job record, and lack of financial expertise.  A Judge is
presumed to have considered all the evidence in the record unless he or she specifically states
otherwise.  See, e.g., ISCR Case No. 07-00196 at 3 (App. Bd. Feb. 20, 2009).  After a review of the
record and the Judge’s decision, the Board concludes that Applicant has not overcome this
presumption.  The Judge discussed at some length Applicant’s ongoing relationship with his
creditors, the fact that debts were disputed, and he specifically mentioned the 401k in a
comprehensive discussion of Applicant’s assets.  The Judge also discussed aspects of Applicant’s
career and personal life under the whole person concept.
Applicant argues that proper application of the Guideline F and Guideline E mitigating
factors mandated a favorable decision in his case.  The presence of some mitigating evidence does
not alone compel the Judge to make a favorable security clearance decision.  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).  Applicant’s disagreement with the Judge’s weighing of the evidence, or an ability to argue
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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’s appeal arguments
essentially set forth his version of the record evidence and as such do not demonstrate error.  The
Judge made sustainable findings that Applicant had a lengthy and serious history of not meeting
financial obligations.  Central to the Judge’s Guideline F analysis was his conclusion that Applicant
took no action on three large credit card debts for more than two years, then disputed the amounts
of those debts shortly before the hearing without offering testimonial or documentary evidence as
to why the balances were incorrect or what he believed the balances should be.  Regarding Guideline
E, Applicant argues that he engaged in no deliberate falsification and argues in the alternative that
any such falsification has been mitigated.  The Judge’s conclusion that falsifications occurred and
that they have not been mitigated is supported by the record.  
The Board does not review a case de novo.  The favorable evidence cited by Applicant is not
sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law.  See, e.g.,
ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007).  After reviewing the record, the Board
concludes that the Judge examined the relevant data and articulated a satisfactory explanation for
his 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).  Therefore, the
Judge’s ultimate unfavorable security clearance decision is sustainable.
Order
The Judge’s decision 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
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Administrative Judge
Member, Appeal Board