KEYWORD: Guideline F; Guideline E
DIGEST: When evaluating the deliberate nature of an applicant’s omissions a Judge consider the
applicant’s mens rea in light of the entirety of the record evidence.  Adverse decision affirmed.
CASENO: 15-01070..a1
DATE: 03/09/2016
DATE: March 9, 2016
In Re:
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Applicant for Security Clearance
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ISCR Case No. 15-01070
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Ryan C. Nerney, Esq.
The Department of Defense (DoD) declined to grant Applicant a security clearance.  On   
August 1, 2015, 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 decision on the written record.  On December 23, 2015, after
considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge
David M. White denied Applicant’s request for a security clearance.  Applicant appealed pursuant
to Directive ¶¶  E3.1.28 and E3.1.30.
Applicant raised the following issues on appeal: whether the Judge’s findings of fact
contained errors and whether the Judge’s adverse decisions was arbitrary, capricious, or contrary
to law.  Consistent with the following, we affirm.
The Judge’s Findings of Fact
Applicant retired from the U.S. military in 2012 and has worked for his current employer
ever since.  Applicant’s SOR alleged one delinquent mortgage account, which the Judge resolved
in his favor based upon evidence that Applicant had cured the delinquency.  The SOR also alleged
other debts that had been opened between 1998 and 2007 and that became delinquent between 2008
and 2012.  Applicant contends that these debts were the result of identity theft.  He did not provide
corroboration for his claim to have contacted the companies involved after his clearance interview
in 2012.  He did nothing further until he received the SOR, at which point he hired an attorney to
challenge the debts.  He signed an Identity Theft Victim’s Complaint and Affidavit, in which he
stated that he had not filed a complaint with law enforcement officials regarding the matter.  One
credit reporting agency deleted some debts from Applicant’s report, and a creditor sent Applicant
a letter certifying that one credit card account had been used fraudulently.  The Judge entered
favorable findings regarding this credit card.  However, he found that Applicant’s affidavit does not
explain his delay in reporting the theft nor does it provide details to establish that the theft actually
occurred.  
In completing his security clearance application (SCA), Applicant failed to disclose his
delinquent debts.  He claimed that he did not know that he had any delinquent debts at the time he
completed the SCA.  He explained his ignorance of the mortgage delinquency by attributing it to
a frequent transfer of the loan between lending institutions, which prevented his automatic payments
from going through.  The Judge found, however, that at the time he completed the SCA the
particular lender had held the loan for four years and that Applicant’s payments had been delinquent
for 15 months.  “It would strain credulity to conclude that Applicant neither received notice from
the lender nor realized that more than $10,000 in extra funds remained in his bank account due to
missed payments.”  Decision at 4.   He found that Applicant’s own evidence, a credit report included
in Applicant Exhibit A, showed that at the time he signed his SCA Applicant had been more than
120 days delinquent on his mortgage.  
The Judge also found that Applicant’s claims of ignorance regarding his other delinquent
debts were not persuasive.  He noted the length of time over which the accounts were opened and
over which they became delinquent.  “All of the accounts reflect lengthy periods during which the
purported identity thief made timely payments toward the balances due, before failing to pay as
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required.”  Id.  He stated that Applicant did not provide enough information to lend credibility to
his claim not to have known about his debts at the time he completed his SCA.  
There is no evidence of financial counseling, a budget, the quality of Applicant’s duty
performance, or track record regarding handling sensitive information.  He stated that Applicant had
submitted no character evidence concerning his judgment, trustworthiness, or reliability.  The Judge
also noted that, insofar as Applicant had elected a decision on the written record, he did have an
opportunity to evaluate Applicant’s demeanor.
The Judge’s Analysis
As stated above, the Judge resolved the mortgage debt and one credit card debt in
Applicant’s favor.  However, he reached unfavorable findings for the other debts, concluding that
Applicant’s claims of identity theft were not credible.   He also found that Applicant was not
credible in claiming to have been ignorant of the debts alleged in the SOR.  The Judge stated that
Applicant is a person with extensive experience in applying for security clearances and that he
offered “no believable rationale for ignorance of substantial delinquent mortgage and consumer
debts.”  Id. at 7.  The Judge found that Applicant’s omissions from the SCA were deliberate.  
Discussion
Applicant challenges the Judge’s finding that his omissions from the SCA were deliberate.
We examine a Judge’s findings to see if they are supported by “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.  When evaluating the deliberate nature of an
applicant’s omissions or false statements, a Judge should consider the applicant’s mens rea in light
of the entirety of the record evidence.  See, e.g., ISCR Case No. 14-04226 at 3 (App. Bd. Aug. 18,
2015).  
In the case before us, the Judge cited to evidence that at the time Applicant completed the
SCA the same mortgage lender had held his account for several years.  A credit report supports this
finding.  Applicant’s Credit Report dated August 2012, at 5.  The Judge’s conclusion that it is
implausible that Applicant had no notice of his delinquency in making his mortgage payments, either
from the lender or from examining his bank account, is sustainable, given the record that was before
him.  Concerning the other debts, we note Applicant’s own evidence, the letter from his attorney,
which states that these accounts were not merely stolen, but were actually opened, by an identity
thief.  Letter from Attorney, dated October 26, 2015.  Applicant’s credit reports show that many of
these debts became delinquent after several years had elapsed from the date they were opened.  One,
in fact, was opened in 1998.  See, e.g., Credit Report, supra, at 6.  It is reasonable to conclude from
this document that, prior to its becoming delinquent, the accounts were paid satisfactorily. A
reasonable person could conclude, as did the Judge, that it is unlikely that a thief would open an
account and apparently make payments on it on Applicant’s behalf for years before letting it become
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delinquent.1  Accordingly, the Judge’s conclusion that Applicant likely knew about his delinquencies
at the time he submitted his SCA is consistent with the record that was before him.  His finding
about the deliberate nature of these delinquencies is sustainable.  
Applicant challenges the Judge’s conclusion that his claims of identity theft were not
believable.  We give deference to a Judge’s credibility determinations.  Directive ¶ E3.1.29.  For
similar reasons to those addressed above, we find no basis to disturb the Judge’s conclusion that
Applicant’s presentation lacked credibility.  We also note the Judge’s finding that Applicant claimed
to have become aware of the purported identity theft during his clearance interview, which took
place in 2012 (see Applicant’s written statement, dated October 27, 2015, included in Applicant
Exhibit A) yet undertook no substantive actions to address this matter until he received the SOR in
August 2015.  We have often noted that the timing of debt payments is relevant in evaluating an
applicant’s case for mitigation, in that an applicant who waits until his clearance is in jeopardy
before resolving debts might be lacking in the judgment expected of those with access to classified
information.  See, e.g., ISCR Case No. 14-01243 at 3 (App. Bd. Jun. 18, 2015).  Similarly, timing
is also relevant in evaluating the credibility of Applicant’s contention that some person or persons
fraudulently used his credit card accounts to acquire a substantial amount of debt in Applicant’s
name.  Applicant’s failure to act for three years raises a reasonable suspicion that his challenge to
the legitimacy of his debts was merely an effort to protect his clearance.  The record supports the
Judge’s conclusion that Applicant’s contentions, without more, were not worthy of belief.  
Applicant has cited to a Hearing Office case that, he contends, supports his case for a
clearance.  We have given this case due consideration as persuasive authority.  However, Hearing
Office cases are not binding on other Hearing Office Judges or on the Appeal Board.  See, e.g., ISCR
Case No. 14-03747 at 3 (App. Bd. Nov. 13, 2015).  Applicant cites to evidence that, he believes,
the Judge failed to consider, such as his contention that he had been a victim of identity theft, that
he had hired an attorney to assist him in challenging the debts, that he served for many years in the
military, etc.  Applicant’s brief is not enough to rebut the presumption that the Judge considered all
of the evidence in the record.  See, e.g., ISCR Case No. 14-06093 at 3 (App. Bd. Dec. 4, 2015). 
Applicant challenges the Judge’s weighing of the evidence, particularly regarding his claims to have
been a victim of identity theft.  However, an ability to argue for an alternative interpretation of the
evidence is not sufficient to show that the Judge’s weighing of the evidence was arbitrary,
capricious, or contrary to law.  See, e.g., ISCR Case No. 14-06440 at 4 (App. Bd. Jan. 8, 2016).
The Judge examined the relevant data and articulated a satisfactory explanation for the
decision.  The decision is sustainable on this record.  “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).  See also Directive, Enclosure 2 ¶ 2(b):  “Any doubt
concerning personnel being considered for access to classified information will be resolved in favor
of the national security.”
1A credit report is generally sufficient to establish a prima facie case that an applicant owes the debts listed
therein, thereby raising concerns under Guideline F.  See, e.g., ISCR Case No. 14-03612 at 3 (App. Bd. Aug. 25, 2015). 
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Order
The 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
Administrative Judge
Member, Appeal Board 
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