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ISCR Case 12-09421.a2 — CASE

ISCR Case 12-09421.a2denied

Case Headnote

ISCR Case No. 12-09421.a2

Oct 2, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A 62-year-old applicant, with a history of holding a security clearance, was denied a security clearance under Guideline F (Financial Considerations). The denial was based on several disqualifying conditions, specifically F1 and F2.

The primary reasons for the denial included the applicant's failure to file state income tax returns for multiple years and the fraudulent receipt of unemployment benefits while already holding a security clearance. Furthermore, the applicant did not present evidence demonstrating that these significant financial issues had been resolved or were under control.

The appeal board affirmed the denial, concluding that the applicant's arguments did not sufficiently prove that the judge's initial decision was arbitrary, capricious, or contrary to law.

Conditions Referenced

Disqualifying

F1raisedFinancial Considerations
F2raisedFinancial Considerations

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 28, 2016
Answer filed—
Hearing heldAug 18, 2017
Decision dateOct 2, 2018Decision on Remand issued after appeal.

Cite For

Affirmation of Adverse Decision Based on Financial Considerations Under Guideline F
Insufficient Rebuttal of Presumption of Evidence Consideration by the Judge
Standard for Granting Clearance Related to National Security Interests

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 financial considerations under Guideline F. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions reached by the Judge.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPaul J. Mason — denied the clearance (split findings)

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 decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for the decision, affirming that it was not arbitrary, capricious, or contrary to law.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael Ra’anan — Chair
James E. Moody
James F. Duffy

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 arguments are neither enough to rebut the presumption that the Judge considered all of the record evidence nor sufficient to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Adverse decision affirmed. CASENO: 12-09421.a2 DATE: 10/02/2018 DATE: October 2, 2018 In Re: ------------------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-09421

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 28, 2016, 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 hearing. On August 18, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Paul J. Mason denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. On November 15, 2017, we remanded the case. On June 29, 2018, the Judge issued a Decision on Remand that denied Applicant’s request for a security clearance. Applicant again appealed pursuant to the Directive. Applicant raised the following issue in his latest appeal: whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm the Decision on Remand. The Judge’s Findings of Fact Applicant, who is 62 years old, has held a security clearance for about 35 years. He and his wife are the guardians for three young children. He attributed his financial problems to expenses arising from his mother’s passing, periods of unemployment between 2001 and 2014, and responsibilities arising from being a guardian. The SOR alleged that Applicant failed to file his state income tax returns for 1998, 2000, 2002, 2003, and 2004; that he owed delinquent state taxes for 2001, 2002, 2004, 2005, and 2008; that he had a Federal tax lien entered against him in 2011; that he was indebted on a collection account and a charged-off account; and that he was arrested in 2013, charged with providing false information to increase benefits, pled guilty, and agreed to pay back the amount of unemployment benefits he was not entitled to receive. The Judge found against Applicant on the state tax filing deficiencies and the allegation pertaining to the false information offense. The Judge found in favor of Applicant on the other allegations. Applicant did not consider the filing of his state tax returns to be a significant matter because he always received a small refund. He admitted the alleged tax filing deficiencies. There is no record that he filed those tax returns. During a period of unemployment from May to September 2012, he collected unemployment compensation. After obtaining his next job, he continued to collect unemployment benefits for at least a month. Because his earnings were low in the new job, he convinced himself that he was justified in continuing to collect unemployment benefits. He now understands that behavior did not make sense. He informed his new employer of his arrest. He pled guilty to a misdemeanor offense and paid restitution and court costs of about $1,500. The Judge’s Analysis

Applicant failed to file his state tax returns for five years, did not pay his delinquent state taxes until the SOR was issued, and fraudulently received unemployment compensation for at least one month while holding a security clearance. Applicant provided no documentation that he has filed his state tax returns since 1998. He has not established that he acted responsibly under the circumstances or that his taxes are being resolved or are under control.

DISCUSSION

As best we can discern from Applicant’s appeal brief, he is complaining about delays in issuing the Decision on Remand.1 As we previously stated, absent a showing that the timing of the issuance of the Judge’s decision caused an identifiable prejudice to the appealing party, mere proof of a delay is not sufficient to warrant remand or reversal of a Judge’s decision. See, e.g., ISCR Case No. 02-32581 at 3 (App. Bd. Jun. 9, 2005). In this case, Applicant has not established that any identifiable prejudice arose from the length of time it took to issue the Decision on Remand. Applicant also contends the Judge did not consider the documents he submitted during the remand. In doing so, he highlights information in those documents and argues he mitigated the alleged security concerns. The Judge, however, made findings of facts regarding the documents submitted on remand. Applicant’s arguments are neither enough to rebut the presumption that the Judge considered all of the record evidence nor 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. 15-01717 at 4 (App. Bd. Jul. 3, 2017).

The Judge examined the relevant evidence 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, Encl. 2, App A ¶ 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: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board

FOOTNOTES

1 In the Decision on Remand, the Judge noted that Applicant’s request for a 60-day period to supplement the record on remand was granted. Applicant’s requests for two other extensions for that time period were also granted.