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ISCR Case 14-05795.a1 — CASE

ISCR Case 14-05795.a1denied

Case Headnote

ISCR Case No. 14-05795.a1

Apr 26, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, represented by counsel, was denied a security clearance under Guideline F (Financial Considerations). The denial stemmed from the applicant's failure to file federal and state income tax returns for both 2012 and 2013, as well as an outstanding collection account balance of $88.

The appeal board affirmed the denial, citing Disqualifying Condition AG ¶ 20(a). A key factor in the decision was the applicant's inability to provide corroborating evidence for their claims, which meant they failed to meet the burden of persuasion required for a security clearance.

Ultimately, the board emphasized the critical link between an applicant's compliance with financial obligations and national security, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedFailure to File or Pay Taxes

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”
— Directive, Enclosure 2 ¶ 2(b)

Procedural Posture

SOR issuedApr 17, 2015
Answer filed—
Hearing heldFeb 9, 2016
Decision dateApr 26, 2016

Cite For

Failure to File Tax Returns as a Disqualifying Condition Under Guideline F
Importance of Corroborating Evidence in Financial Matters
Burden of Persuasion Rests with the Applicant in Security Clearance Cases

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 based on financial considerations under Guideline F. The applicant challenged the Judge's findings and argued that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding that the findings were supported by substantial evidence and that the applicant did not meet the burden of persuasion.

Appealed bythe applicant

Applicant representationAttorney

Judge belowArthur E. Marshall, Jr. — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant challenges the Judge’s findings of fact.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argues that the Judge’s adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board concluded that the Judge’s findings fairly capture the material facts of the case and are based on substantial evidence. The Judge's analysis was not arbitrary or capricious, and the applicant did not meet the burden of persuasion for a security clearance.

Standard of review applied

Substantial-evidence reviewNo de-novo re-decisionNo new evidence on appeal

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: Applicant challenges the Judge’s findings of fact. However, the Boards concludes that the Judge’s findings fairly capture the material facts of the case. Adverse decision affirmed. CASENO: 14-05795.a1 DATE: 04/26/2016 DATE: April 26, 2016 In Re: --------------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-05795

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Wayne Roberts, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On April 17, 2015, 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 February 9, 2016, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Arthur E. Marshall, Jr., 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 were based upon substantial evidence and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant failed to file Federal and state income tax returns for tax years 2012 and 2013. In addition, he owes $88 on a collection account. Applicant stated that he forgot to file his returns because a relative, who had previously done so for him, passed away. He filed his returns in May 2015, which was after the date of the SOR. Applicant contends that he has tried to contact the creditor for the collection account. He provided no documentary support for his claims regarding having filed his returns and having attempted to contact the creditor. The Judge’s Analysis The Judge noted Applicant’s explanation that he had forgotten to file his returns. He reiterated his findings about a lack of corroboration for Applicant’s various statements. He concluded that the file contains no evidence to establish any of the mitigating conditions. He stated that, while there is no reason to believe Applicant’s statements are untrue, the lack for corroboration results in a conclusion that he has not met his burden of persuasion.

DISCUSSION

Applicant challenges the Judge’s findings of fact. He cites to various things in the record that he believes are mitigating and appears to argue that the Judge’s failure to have made more detailed findings impaired his evaluation of the case. However, a Judge is not expected to make findings about every piece of evidence in the record, which would be an impossibility. See, e.g., ISCR Case No. 12-01500 at 3 (App. Bd. Aug. 25, 2015). We conclude that the Judge’s findings fairly capture the material facts of the case. Applicant has not cited to a finding, or to any omission of facts, that would amount to harmful error. The Judge’s material findings are based upon substantial evidence. See, e.g., ISCR Case No. 12-03420 at 3 (App. Bd. Jul. 25, 2014). In essence, Applicant contends that the Judge did not consider evidence that was favorable to him. However, a Judge is presumed to have considered all of the evidence in the record, and Applicant has not rebutted that presumption. See, e.g., ISCR Case No. 14-06093 at 3 (App. Bd. Dec. 4, 2015). Applicant notes a comment by the Judge that there is no reason to believe that Applicant’s written presentation is untruthful, thereby challenging the Judge’s other comments about a paucity of corroborating evidence. He appears to argue that, if the Judge did not find Applicant’s assertions to be false, he should have found them mitigating. However, in a DOHA proceeding, the Applicant bears the burden of persuasion that he should have a clearance. It is not erroneous for a Judge to conclude that an applicant’s statements may be credible as far as they go but that they do not go far enough to meet the applicant’s burden of showing that it is “‘clearly consistent with the interests of the national security’” for him to have a clearance. Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).1 We note the Judge’s finding that Applicant did not file his returns until he had received the SOR, which he could properly conclude detracted from Applicant’s case for mitigation.2 See, e.g., ISCR Case No. 14-01243 at 3 (App. Bd. Jun. 18, 2015) for the proposition that the timing of an applicant’s corrective action is a relevant consideration. Applicant’s argument is a challenge to the Judge’s weighing of the evidence, but that is not sufficient to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 12-01500, supra. Applicant has submitted new evidence, which we cannot consider. Directive ¶ E3.1.29. The Judge examined the relevant data and articulated a satisfactory explanation for the decision. Failure to file tax returns suggests a problem with complying with rules and regulations, a quality essential to protecting classified information. See, e.g., ISCR Case No. 01-05340 at 3 (App. Bd. Dec. 20, 2002). The decision is sustainable on this record. See 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

FOOTNOTES

1 See, e.g., ISCR Case No. 11-02087 at 2 (App. Bd. Mar. 20, 2012): “[E]ven if a Judge considers an applicant’s testimony to be credible, the Judge still must consider what reasonable inferences and conclusions can be drawn from that testimony.”

2 Indeed, we note that Applicant disclosed his delinquent tax returns in his security clearance application, dated June 18, 2014 (Item 3 at 32-33), and discussed them in his clearance interview in July 2014 (Item 4, Interview Summary, at 4). In the interview, Applicant stated that he would hire a CPA and file his returns. However, as the Judge found, he did not do so until nearly a year later, which bears upon his claims that he simply forgot to file them. Member, Appeal Board