A decided public DOHA case, shown for research, not advice or a prediction.
ISCR Case No. 22-00747
Appeal BoardDecided Nov 29, 2023 · Administrative Judge Gregg A. Cervi · Appeal
Case headnote
Summary
The applicant, represented by counsel, faced security clearance denial under Guideline F due to failure to file required tax returns from 2015 to 2021. The appeal affirmed the denial, emphasizing insufficient mitigation of financial concerns and the lack of challenge to the judge's findings. The applicant's counsel raised issues regarding alcohol use, which were not part of the original allegations, and the appeal was ultimately denied as consistent with national security interests.
Why the applicant was denied
- The applicant failed to file required tax returns for multiple years, demonstrating a lack of responsibility regarding financial obligations.
- The judge found that the applicant did not mitigate the security concerns raised under Guideline F despite eventually filing most tax returns.
Conditions referenced
Disqualifying
- F.3 Failure to file or pay taxesraised
Mitigating
- F.2 The individual has made a good faith effort to repay overdue taxes or has entered into a good faith agreement to repay themrejected
Key rule quoted
“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”
Procedural posture
- SOR issued
- 2022-09-02
- Answer filed
- Hearing held
- 2023-09-26 close of the record
- Decision date
- 2023-11-29 appeal affirmed
Cite for
- Insufficient Mitigation of Financial Concerns Under Guideline F
- Failure to Challenge Findings of Fact on Appeal
- Reaffirmation of National Security Interests in Clearance Decisions
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
The appeal involved a denial of security clearance for the Applicant based on financial considerations. The Board affirmed the Administrative Judge's decision, finding that the Applicant did not mitigate the security concerns related to his tax filings. The Applicant's Counsel did not challenge the Judge's findings but disagreed with the weighing of evidence, which the Board found insufficient to establish harmful error.
Descriptive structured reading of this decided, public Appeal Board decision: what the case says, not a prediction or advice.
Full decision
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Decision text, by section
Appearances
_______________________________________________ ) In the matter of: )
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ISCR Case No. 22-00747
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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: November 29, 2023
Appearances
FOR GOVERNMENT Julie R. Mendez, Esq., Deputy Chief Department Counsel FOR APPLICANT Samir Nakhleh, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On September 2, 2022, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision⸺security concerns raised under Guideline F (Financial Considerations) of the National Security Adjudicative Guidelines of Security Executive Agent Directive 4 (effective June 8, 2017) (AG) and DoD Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). On September 26, 2023, after close of the record, Defense Office of Hearings and Appeals Administrative Judge Robert E. Coacher denied Applicant’s security clearance eligibility. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. For reasons stated below, we affirm the Judge’s decision. The SOR alleged that Applicant failed to file, as required, his Federal income tax returns for 2015 to 2021 and his state income tax returns for 2015 to 2016 and 2018 to 2021. Although the Judge found against Applicant on both allegations, he determined that Applicant timely filed his 2017 Federal income tax return. Even though Applicant eventually filed all but one of the alleged tax returns, the Judge concluded that Applicant failed to mitigate the alleged Guideline F security concerns, noting he failed to show that he acted responsibly regarding his tax filing obligations.
On appeal, Applicant’s Counsel does not challenge any of the Judge’s findings of fact. He does mention that the “Judge found that mitigating factors under Guideline F were insufficient to overcome the concerns about [Applicant’s] alcohol use, reliability, trustworthiness, judgment, and honesty.” Appeal Brief at 7-8. Concerns about Applicant’s alcohol use were neither alleged in the SOR nor discussed in the Judge’s decision. Furthermore, the Judge made no negative findings or conclusions about Applicant’s honesty. The arguments that Applicant’s Counsel raises in the appeal brief amount to a disagreement with the Judge’s weighing of the evidence; however, none of his arguments are sufficient to establish the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Directive ¶ E3.132.3 Applicant failed to establish that the Judge committed any harmful error or that he should be granted any relief on appeal. 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 the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). See also AG ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”
Order
The decision is AFFIRMED. Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Chair, Appeal Board Signed: Allison Marie Allison Marie Administrative Judge Member, Appeal Board Signed: Gregg A. Cervi Gregg A. Cervi Administrative Judge Member, Appeal Board