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ISCR 15-04850.a1: Guideline F security clearance appeal, denied (2018) · CASE

ISCR Case 15-04850.a1denied

Case headnote

ISCR Case No. 15-04850.a1

Jan 26, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline F (Financial Considerations) due to significant delinquent debts and a failure to file tax returns for multiple years. The appeal board affirmed this denial, citing the applicant's financial irresponsibility as the primary concern.

Specifically, disqualifying conditions F3 (inability or unwillingness to satisfy debts) and F4 (a history of not meeting financial obligations) were raised. While mitigating conditions F2 (the condition was not recent, was isolated, or was due to circumstances beyond the person's control) and F3 (the person has initiated a good-faith effort to resolve the debts) were considered, they were ultimately deemed insufficient.

The board concluded that the applicant's claimed mitigating circumstances did not outweigh the unfavorable evidence of his ongoing financial issues. Therefore, the security clearance was denied.

Conditions referenced

Disqualifying

F3raisedInability or Unwillingness to Satisfy Debts
F4raisedUnexplained or Inconsistent Financial Behavior

Mitigating

F2rejectedThe Conditions That Resulted in the Financial Problems Were Largely Beyond the Person's ControlThe applicant's failure to file tax returns was a serious transgression.
F3notedThe Person Has Received or Is Receiving Counseling for the Financial Problem

Key rule quoted

“A person who fails repeatedly to fulfill his or her legal obligations, such as not filing tax returns or paying taxes when due, does not demonstrate the high degree of good judgment and reliability required of those granted access to classified information.”
ISCR Case No. 15-08782 at 3 (App. Bd. Apr. 5, 2017)

Procedural posture

SOR issuedMay 24, 2016
Answer filed—Applicant represented himself.
Hearing heldOct 18, 2017
Decision dateJan 26, 2018

Cite for

Denial of Security Clearance Due to Financial Irresponsibility Under Guideline F
Harmless Error Doctrine in Findings of Fact
Weighing of Mitigating Evidence Against Unfavorable Evidence 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 was filed by the applicant after the Administrative Judge denied his request for a security clearance based on financial considerations. The applicant raised issues regarding the Judge's findings of fact and the overall decision. The Board affirmed the Judge's decision, concluding that the identified errors were harmless and did not affect the outcome.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMarc E. Curry denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant contends that the Judge erred in his mitigation and whole-person analysis.
Erroneous finding of fact, raised by the applicantError found, but harmless
Applicant claims the Judge erred in three findings of fact, but the Board found these errors were harmless.

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 while the Judge made some errors in his findings of fact, none of the errors were likely to have affected the outcome of the case, leading to an affirmation of the adverse decision.

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 Ra’anan (Chair)
Charles C. Hale
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: While the Judge made some errors in his findings of fact, none of the errors that Applicant has identified are likely to have affected the outcome of the case. We conclude, therefore, those identified errors were harmless. Adverse decision affirmed. CASE NO: 15-04850.a1 DATE: 01/26/2018 DATE: January 26, 2018 In Re: ------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-04850

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 May 24, 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 October 18, 2017, after the hearing, Administrative Judge Marc E. Curry 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 erred in his findings of fact and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following discussion, we affirm the Judge’s decision. Applicant claims the Judge erred in three findings of fact. First, he notes the Judge found he held a security clearance from 1995 to 2008. In the appeal brief, he claims he held a security clearance from 1984 to 2017. In his 2012 security clearance application, Applicant checked boxes reflecting that he did not know the dates he was granted clearance eligibility or access to classified information, but estimated the Government investigated his background in 1986 and 2000. GE 1 at 42-43. At the hearing, he testified that he was granted a security clearance when he joined the military in 1983 and maintained one until 2007. His testimony does not clearly reflect that he held a security clearance beyond 2007. Tr. at 14. Second, he claims the Judge erred in finding: “By December 2015, he had yet to file any of his tax returns for tax years 2007 through 2013 . . . .” He contends that ‘[y]ears not filed where [sic] 2007 through 2011". Appeal Brief at 1. IRS tax transcripts reflect that Applicant filed his Federal income tax return for 2012 on June 17, 2013, and for 2013 on May 26, 2014. Applicant’s Exhibit Q. Third, he challenges the Judge’s finding that “[b]etween 2007 and 2012, Applicant incurred approximately $270,000 of delinquent debt, as alleged in the SOR.” Applicant asserts his “[a]pproximate indebtedness was $252,000", consisting of $160,000 in back taxes, $70,000 owed to a lawyer, and $22,000 in other indebtedness. Appeal brief at 1. We note the SOR debts add up to about $258,900. While the Judge made some errors in his findings of fact, none of the errors that Applicant has identified are likely to have affected the outcome of the case. We conclude, therefore, those identified errors were harmless. See, e.g., ISCR Case No. 11-15184 at 3 (App. Bd. Jul. 25, 2013). Applicant also contends that the Judge erred in his mitigation and whole-person analysis. In doing so, Applicant highlights evidence in his favor, including that he has accumulated no new debt in the past five years, he has filed all required tax returns, and he has an active tax repayment plan in place.1 As the Appeal Board has previously stated, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. A party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15-00650 at 2 (App. Bd. Jun. 27, 2016). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. A person who fails repeatedly to fulfill his or her legal obligations, such as not filing tax returns or paying taxes when due, does not demonstrate the high degree of good judgment and reliability required of those granted access to classified information. See, e.g., ISCR Case No. 15- 08782 at 3 (App. Bd. Apr. 5, 2017). 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 1 Applicant, however, concedes that his failure to file his tax returns in a timely manner was a “serious transgression.” Appeal Brief at 2. information will be resolved in favor of national security.”

ORDER

The Decision is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board