ISCR Case No. 19-03938

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ISCR Case No. 19-03938

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) Applicant for Security Clearance ) _______________________________________) DEPARTMENT OF DEFENSE DEFENSE LEGAL SERVICES AGENCY DEFENSE OFFICE OF HEARINGS AND APPEALS APPEAL BOARD POST OFFICE BOX 3656 ARLINGTON, VIRGINIA 22203 (703) 696-4759 Date: January 25, 2023

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On June 1, 2020, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision―security concerns raised under Guideline F (Financial Considerations) of DoD Directive 5220.6 (January 2, 1992, as amended) (Directive). On November 5, 2021, the SOR was amended to raise security concerns under Guideline B (Foreign Influence). Applicant requested a hearing. On November 30, 2022, after the record closed, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Juan J. Rivera denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The Judge’s favorable findings under Guideline B were not raised as an issue on appeal. The Judge found against Applicant on four Guideline F allegations. These asserted that he owed about $11,600 in delinquent Federal taxes for 2015; that he failed to file, as required, his Federal and state income tax returns for 2016 thru 2018; and that he had two charged-off consumer debts

totaling about $57,500.1 In the decision, the Judge noted that Applicant had non-alleged tax delinquencies that he would only consider in applying the mitigating conditions. In his analysis, the Judge indicated that Applicant presented no documentary evidence of actions taken to resolve the alleged delinquencies until months after the SOR was issued. The Judge concluded that Applicant failed to establish he acted responsibly under the circumstances. Applicant’s appeal brief contains documents and assertions that were not submitted to the Judge for consideration. The Appeal Board is prohibited from receiving or considering new evidence. Directive ¶ E3.1.29. On appeal, Applicant argues that the Judge erred in concluding he has a problem in complying with rules and regulations; that his wife’s conduct was the root cause of his financial problems; that he has a history of financial responsibility; and that a whole-person analysis establishes his security-clearance worthiness. However, none of his arguments are enough to rebut the presumption that the Judge considered all of the record evidence or to demonstrate the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 21-01169 at 5 (App. Bd. May 13, 2022). Applicant failed to establish that the Judge committed any harmful error. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on the record. “The general standard is that a clearance may be granted only when ‘clearly consistent with national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). See also, Directive, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.” 1 The Judge found that Applicant filed his 2018 income tax returns in March 2021. Decision at 3. The Judge erred in making no specific findings of fact regarding Applicant’s purported failure to file his 2016 and 2017 Federal income tax returns as required, although the Judge found Applicant filed amended tax returns for 2017 in March 2021. This error was harmless because it did not likely affect the outcome of the case. See, e.g., ISCR Case No. 19-01220 at 3 (App. Bd. Jun. 1, 2020).

The decision is AFFIRMED. Signed: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board Signed: Gregg A. Cervi Gregg A. Cervi Administrative Judge Member, Appeal Board