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ISCR Case 14-02718.a1 — CASE

ISCR Case 14-02718.a1denied

Case Headnote

ISCR Case No. 14-02718.a1

Sep 28, 2015· Hon. Michael Y. Ra'anan· appeal

Summary

The applicant, representing himself, was denied a security clearance under Guideline F (Financial Considerations) due to a failure to file Federal or state income tax returns for several years. This conduct raised Disqualifying Condition F.1.

The judge found the applicant's explanations, which included claims of being overextended at work, unconvincing and lacking credibility. Furthermore, the applicant did not present any evidence demonstrating good faith efforts to resolve his outstanding tax issues.

Ultimately, the judge characterized the applicant's conduct as egregious, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

F.1raisedFailure to File or Pay Taxes

Key Rule Quoted

“An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds.”
— Directive, Enclosure 2 ¶ 18.

Procedural Posture

SOR issuedSep 8, 2014
Answer filed—Applicant requested a decision on the written record.
Hearing heldJun 30, 2015
Decision dateSep 28, 2015

Cite For

Failure to File Tax Returns as a Disqualifying Condition Under Guideline F
Insufficient Evidence of Good Faith Efforts to Resolve Financial Issues
Importance of Financial Responsibility in Security Clearance 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 a denial of a security clearance based on financial considerations under Guideline F. The Applicant argued that the Judge erred in her findings regarding his evidence of handling classified information. The Board affirmed the decision, finding any error harmless as the Judge's conclusions were supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowShari Dam — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantError found, but harmless
The Judge erred in finding that Applicant submitted no evidence concerning his track record with handling classified information.

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 any error in the Judge’s findings of fact was harmless, as the material findings were supported by substantial evidence. The Judge's conclusions regarding the Applicant's financial issues and their implications for security were upheld.

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 callsReduced credibility deference (written record)

Appeal Board panel

Michael Ra’anan — Chair
William S. Fields
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: Any error in the Judge’s findings of fact is harmless. Applicant’s failure to file tax returns raised concerns under Guideline F. Adverse decision affirmed. CASE NO: 14-02718.a1 DATE: 09/28/2015 DATE: September 28, 2015 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-02718

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 September 8, 2014, DoD 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 decision on the written record. On June 30, 2015, after considering the record, Defense Office of Hearings and Appeals (DOHA) 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 issues on appeal: whether the Judge’s findings of fact were based upon substantial record evidence and whether the Judge erred in concluding that Applicant’s conduct raised security concerns. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant failed to file Federal or state income tax returns for several years. In his response to the File of Relevant Material (FORM) he advised that, since 1984, he had filed his state tax forms only once, in 2001. In his Response to the SOR, he stated that he had not filed his Federal tax returns for, “at least, tax years 2007 through 2012.” Decision at 3. He claimed that his failure to have filed his returns was due to his being overextended at work and letting his house “get way out of control leading to the inability to find tax records. ” Id. Applicant did not present evidence that he had obtained counseling to assist in the resolution of his delinquent returns. He offered no time-line for filing his returns and submitted no evidence about the quality of his work performance, level of responsibility, or compliance with security procedures. Applicant provided no character evidence. The Judge’s Analysis The Judge concluded that Applicant had provided insufficient evidence that his tax delinquencies were due to circumstances beyond his control, that his problems were under control, or that he had made a good-faith effort to file his returns. She characterized his conduct as “egregious,” and she concluded that his explanation about his work burden lacked credibility. Id. at 6.

DISCUSSION

Applicant challenges the Judge’s finding that he had submitted no evidence concerning his track record with handling classified information. He cites to his Response to the FORM, in which he discussed his having coordinated the move of a classified computer from one room to another and his having been granted permission to maintain the “end of day” classified container checklist. He also notes his statement in his security clearance application that he has never been denied clearance eligibility. To the extent that the Judge found that Applicant had provided no evidence of any sort relevant to his security compliance, she made an error. However, we note that the record contains no independent evidence that would corroborate Applicant’s assertions about this matter. In any event, even if the Judge had noted the things that Applicant has cited in his appeal brief, she would not likely have rendered a different decision. Therefore, any error in her findings is harmless. The Judge’s material findings are founded upon “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” Directive ¶ E3.1.32.1. Applicant notes the Judge’s quotation from the Directive: “An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds.” See Directive, Enclosure 2 ¶ 18. He argues that he is not financially overextended, citing to evidence of his substantial contributions to his church as proof of his solvency. We construe this as an argument that his circumstances do not raise security concerns. The Judge began the Analysis section of the Decision by quoting ¶ 18 in its entirety. The gravamen of the concern under Guideline F is not simply that an applicant may be tempted to compromise classified information in order to generate funds to pay off debts. It also addresses the extent to which financial problems raise questions about an applicant’s self control, judgment, and other qualities essential to protecting classified information. See, e.g., ISCR Case No. 11-05365 at 3 (App. Bd. May 1, 2012). ¶ 19(g) specifically includes an applicant’s failure to file tax returns as a condition that could raise a security concern. We find no error in the Judge’s conclusions on this matter. The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The decision is sustainable on this 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 Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

ORDER

The Decision is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board