CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 22-00747 — CASE

ISCR Case 22-00747denied

Case Headnote

ISCR Case No. 22-00747

Nov 29, 2023· Hon. Gregg A. Cervi· appeal

Summary

An applicant, represented by counsel, was denied a security clearance under Guideline F (Financial Considerations) due to a failure to file required tax returns from 2015 to 2021. This demonstrated a pattern of irresponsibility regarding financial obligations, specifically aligning with Disqualifying Condition F.3.

While the applicant eventually filed most of the outstanding tax returns, the judge determined that this action did not sufficiently mitigate the security concerns. The appeal affirmed the denial, noting that the applicant's counsel did not challenge the judge's findings regarding the financial issues.

The appeal also addressed counsel's introduction of alcohol use concerns, which were not part of the original allegations. Ultimately, the denial was upheld, consistent with national security interests, due to the unmitigated financial concerns under Guideline F.

Conditions Referenced

Disqualifying

F.3raisedFailure to File or Pay Taxes

Mitigating

F.2rejectedThe Individual Has Made a Good Faith Effort to Repay Overdue Taxes or Has Entered Into a Good Faith Agreement to Repay ThemThe judge concluded that the applicant failed to show he acted responsibly regarding his tax filing obligations.

Key Rule Quoted

“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)

Procedural Posture

SOR issuedSep 2, 2022
Answer filed—
Hearing heldSep 26, 2023close of the record
Decision dateNov 29, 2023appeal 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· Full written decision

Affirmed

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.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRobert E. Coacher — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant's Counsel argued that the Judge's findings were insufficient to mitigate security concerns.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision and affirmed the denial of the security clearance based on the evidence presented.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Moira Modzelewski — Chair
Allison Marie
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. 22-00747

)

) 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

APPEAL BOARD DECISION

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