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ISCR Case 06-20189.a1 — CASE

ISCR Case 06-20189.a1denied

Case Headnote

ISCR Case No. 06-20189.a1

May 21, 2008· Hon. Jeffrey D. Billett· appeal

Summary

The applicant, represented by counsel, was denied a security clearance based on concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from the applicant's failure to file federal income tax returns between 1999 and 2004, which resulted in an approximate tax debt of $63,954.

Additionally, the applicant deliberately falsified his security clearance application by incorrectly stating he had no delinquent debts. These actions raised disqualifying conditions under the applicable guidelines.

While mitigating conditions were considered, the appeal board affirmed the denial, concluding there was substantial evidence that the applicant did not meet the burden of proof for security clearance eligibility. The denial was upheld due to the unfiled tax returns and the deliberate falsification of the application regarding delinquent debts.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe judge found that the applicant did not provide sufficient evidence to mitigate the financial concerns.
AG ¶ 17rejectedPersonal ConductThe judge concluded that the applicant's actions were deliberate and not mitigated by any circumstances.

Key Rule Quoted

“Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance.”
— Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)

Procedural Posture

SOR issuedNov 6, 2006
Answer filed—
Hearing heldJan 31, 2008
Decision dateMay 21, 2008

Cite For

Failure to File Tax Returns as a Disqualifying Condition Under Guideline F
Deliberate Falsification of Information on a Security Clearance Application as a Disqualifying Condition Under Guideline E
The Presumption Against Granting Security Clearance When Concerns Arise Regarding Eligibility.

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 who was denied a security clearance due to failure to file federal income tax returns and falsifying information on his security clearance application. The Board affirmed the Administrative Judge's decision, finding no harmful error in the Judge's conclusions regarding the applicant's financial and personal conduct issues.

Appealed bythe applicant

Applicant representationAttorney

Judge belowErin C. Hogan — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge's findings were not based on substantial record evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge's adverse decision was arbitrary, capricious, and contrary to law.

Why the Board ruled this way

The Board found that the Judge's material findings were supported by substantial evidence and that the adverse decision was not arbitrary or capricious.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decision

Appeal Board panel

Jeffrey D. Billett
Jean E. Smallin
William S. Fields

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; Guideline E DIGEST: The Judge found that Applicant had failed to timely file federal income tax returns for the years 1999 through 2004. As a result, he had incurred a tax debt, including late fees and penalties, of approximately $63,954. Decision at 3-4. Additionally, the Judge found that Applicant had deliberately falsified his security clearance application (SCA) when in response to the questions as to whether he had debts that had been delinquent over 90 days and over 180 days respectively, he answered “no.” Adverse decision affirmed. CASENO: 06-20189.a1 DATE: 05/21/2008 DATE: May 21, 2008 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-20189

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Donald L. Schense, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On November 6, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On January 31, 2008, after the hearing, Administrative Judge Erin C. Hogan denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether certain of the Judge’s findings are based upon substantial record evidence; and whether the Judge’s adverse decision is arbitrary, capricious, and contrary to law. Finding no error, we affirm. The Judge found that Applicant had failed to timely file federal income tax returns for the years 1999 through 2004. As a result, he had incurred a tax debt, including late fees and penalties, of approximately $63,954. Decision at 3-4. Additionally, the Judge found that Applicant had deliberately falsified his security clearance application (SCA) when in response to the questions as to whether he had debts that had been delinquent over 90 days and over 180 days respectively, he answered “no.” In reaching that conclusion, the Judge noted: “It is likely that Applicant was aware that his tax debts would be an issue based on his 30 year history of holding a security clearance.” Decision at 8-9. Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the government presents th evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. “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).

The Board has examined the Judge’s decision and concludes that her material findings are supported by substantial record evidence. The Judge’s conclusion that Applicant knowingly provided false information on his SCA is sustainable. The Judge weighed the evidence supplied by Applicant and considered the application of relevant mitigating conditions, finding in Applicant’s favor on some of the Guideline F security concerns. Nevertheless, the record supports the Judge’s conclusion that Applicant failed to meet his burden of persuasion that it is clearly consistent with the interests of national security for him to have a security clearance. Accordingly, the Board holds that the Judge’s adverse decision is not arbitrary, capricious, or contrary to law.

ORDER

The Judge’s adverse security clearance decision is AFFIRMED.

Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board