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ISCR 19-03938: Guideline B security clearance appeal, denied (2023) · CASE

ISCR Case 19-03938denied

Case headnote

ISCR Case No. 19-03938

Jan 25, 2023· Hon. Gregg A. Cervi· appeal

Summary

A security clearance applicant, representing himself, was denied clearance under Guideline B (Foreign Influence) and Guideline F (Financial Considerations). The denial was primarily based on financial issues, specifically delinquent federal taxes and unfiled tax returns. The applicant owed approximately $11,600 in federal taxes for 2015 and failed to file returns for 2016 through 2018. Additionally, the applicant had two charged-off consumer debts totaling about $57,500.

Disqualifying conditions under Guideline F included a history of not meeting financial obligations, an inability or unwillingness to satisfy debts, and a pattern of financial irresponsibility. While mitigating conditions such as the financial problems being largely beyond the applicant's control and a good-faith effort to resolve the issues were considered, they were not sufficient to overcome the concerns.

The applicant did not provide evidence of actions taken to resolve the financial delinquencies until months after the Statement of Reasons (SOR) was issued. The appeal was unsuccessful, as the judges found no harmful error in the original decision, affirming that the applicant did not demonstrate responsible action regarding his financial obligations. The security clearance was ultimately DENIED.

Conditions referenced

Disqualifying

AG ¶ 20(a)raisedFinancial Considerations
AG ¶ 20(c)raisedFinancial Considerations
AG ¶ 20(d)raisedFinancial Considerations
AG ¶ 20(e)raisedFinancial Considerations

Mitigating

AG ¶ 21(a)rejectedFinancial ConsiderationsThe applicant did not demonstrate responsible action regarding his financial obligations.
AG ¶ 21(b)rejectedFinancial ConsiderationsThe applicant's arguments did not establish a history of financial responsibility.
AG ¶ 21(c)rejectedFinancial ConsiderationsThe applicant's financial problems were not mitigated by external circumstances.

Key rule quoted

“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)

Procedural posture

SOR issuedJun 1, 2020
SOR amendedNov 5, 2021
Hearing heldNov 30, 2022after the record closed
Decision dateJan 25, 2023Appeal decision

Cite for

Denial of Security Clearance Due to Financial Considerations Under Guideline F
Affirmation of a Decision Based on Lack of Harmful Error in the Judge's Findings
The Standard for Granting Clearance as Being Consistent with National Security

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Affirmed

The appeal involved a denial of a security clearance based on financial considerations and foreign influence. The applicant argued that the judge erred in assessing his compliance with regulations and the impact of his wife's conduct on his financial issues. The Board affirmed the decision, finding no harmful error in the judge's conclusions.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJuan J. Rivera denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline B

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argued that the Judge erred in concluding he has a problem in complying with rules and regulations.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant contended that his wife's conduct was the root cause of his financial problems.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant claimed he has a history of financial responsibility.
Whole-person analysis, raised by the applicantRejected
Applicant argued that a whole-person analysis establishes his security-clearance worthiness.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision was sustainable on the record, and the applicant failed to establish any harmful error.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

James F. Duffy (Chair)
Moira Modzelewski
Gregg A. Cervi

Descriptive structured reading of this decided, public Appeal Board decision: what the case says, not a prediction or advice.

Full decision

The complete, official text, footnotes and signatures included, is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

APPEARANCES

_______________________________________ ) In the matter of: )

)

----- )

ISCR Case No. 19-03938

)

) 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

APPEAL BOARD DECISION

APPEARANCES

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).

ORDER

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