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ISCR Case 04-11768.a1 — CASE

ISCR Case 04-11768.a1denied

Case Headnote

ISCR Case No. 04-11768.a1

Jul 22, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied clearance under Guideline F (Financial Considerations) due to a history of unfiled and late tax returns. The applicant failed to file federal income tax returns for tax years 2005 through 2007, and state tax returns for 2006 and 2007. Additionally, federal tax returns for 2004 and state tax returns for 2004 and 2005 were filed late, in 2008.

The appeal board upheld the adverse decision, concluding that the applicant did not meet the burden of persuasion for mitigation. The board found that the applicant did not provide sufficient evidence to address the security concerns raised by his financial conduct.

Ultimately, the board affirmed that granting a security clearance to the applicant was not consistent with national security interests, and the clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFailure to File Tax Returns

Key Rule Quoted

“It is clearly not consistent with the interests of national security to grant Applicant eligibility for a security clearance.”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedJul 22, 2008
Answer filed—
Hearing heldApr 23, 2009
Decision dateJul 22, 2009

Cite For

Failure to File Tax Returns Under Guideline F
Insufficient Mitigation of Financial Considerations
National Security Interests in Security 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 an applicant seeking a security clearance who was denied due to failure to file federal and state tax returns. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no error in the ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowShari Dam — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's decision, affirming that the Judge articulated a rational explanation for the adverse decision based on the applicant's failure to file tax returns, which raised security concerns under Guideline F.

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

Michael Y. Ra’anan — Chair
Jean E. Smallin
James E. Moody

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

SYNOPSIS

KEYWORD: Guideline F DIGEST: Applicant’s failure to file federal and state tax returns raised Guideline F security concerns. Matters which Applicant submitted in his behalf were not sufficient to meet his burden of persuasion. Adverse decision affirmed. CASENO: 04-11768.a1 DATE: 07/22/2009 DATE: July 22, 2009 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 04-11768

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On July 22, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On April 23, 2009, after the hearing, Administrative Judge Shari Dam denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge found that Applicant had not filed federal income tax returns for tax years 2005 through 2007 and that he had not filed state tax returns for 2006 or 2007. She also found that his federal return for 2004 and his state tax returns for 2004 and 2005 were not filed until 2008. The Judge considered the matters Applicant submitted in his case for mitigation but concluded that he had failed to meet his burden of persuasion. After reviewing the record, the Board concludes that the Judge has articulated a rational explanation for the adverse decision. See Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The Judge’s decision that “it is clearly not consistent with the interests of national security to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 9. See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board