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ISCR Case 17-03575 — CASE

ISCR Case 17-03575denied

Case Headnote

ISCR Case No. 17-03575

deniedDec 26, 2018· Hon. LeRoy F. Foreman· hearing

Summary

A 52-year-old security-systems engineer was denied a security clearance due to concerns under Guideline F (Financial Considerations). The applicant admitted to two primary issues: owing $11,564 in delinquent federal income taxes and failing to timely file his federal income tax return for tax year 2016. These issues raised disqualifying conditions related to financial irresponsibility and a pattern of not meeting financial obligations.

Despite the applicant's claims of making payments toward the delinquent taxes, he did not provide adequate documentation to substantiate these claims or to demonstrate overall compliance with his tax obligations. The financial issues were considered recent, and the applicant failed to establish any mitigating conditions that would alleviate the security concerns.

Consequently, the Adjudicative Guideline F concerns remained unresolved. The applicant's eligibility for access to classified information was denied, as he did not provide sufficient evidence to overcome the financial considerations raised by his delinquent taxes and unfiled return.

Why the Applicant Was Denied

The applicant admitted to owing $11,564 in delinquent federal income taxes and failing to timely file his 2016 tax return.
He did not provide sufficient documentation to support his claims of making payments or to demonstrate compliance with tax obligations.
The applicant's financial issues were recent and he failed to establish any mitigating conditions.

Conditions Referenced

Disqualifying

AG ¶ 19(c)appliedHistory of Not Meeting Financial Obligations
AG ¶ 19(f)appliedFailure to File or Fraudulently Filing Annual Federal, State, or Local Income Tax Returns or Failure to Pay Annual Federal, State, or Local Income Tax as Required

Key Rule Quoted

“Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines.”

Procedural Posture

SOR issuedNov 9, 2017
Answer filedDec 6, 2017
Hearing heldDec 14, 2018Assigned to judge.
Decision dateDec 26, 2018

Cite For

Denial of Security Clearance Due to Financial Delinquencies Under Guideline F
Insufficient Documentation to Mitigate Financial Concerns
Recent Financial Issues Impacting 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.

Standardized Decision Profile

SEAD-4 Guideline F · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant has financial concerns due to delinquent federal income taxes totaling $11,564 and a failure to timely file his federal income tax return for 2016. The judge ruled against the applicant on both allegations, finding that the applicant did not sufficiently mitigate the security concerns related to his financial obligations.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	Applicant owes $11,564 in delinquent federal income taxes $11,564	Against Applicant	Tax Unpaid	Admitted	(c) a history of not meeting financial obligations (f) failure to file / fraudulent filing of tax returns or unpaid tax	—	Claimed Payment Plan with IRS
1.b	Applicant failed to timely file his federal income tax return for tax year 2016	Against Applicant	Tax Filing Failure	Admitted	(c) a history of not meeting financial obligations (f) failure to file / fraudulent filing of tax returns or unpaid tax	—	—

Descriptive standardized rendering of a decided public case (Guideline F). The verbatim source decision is shown in full below.

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

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) [Redacted] ) ISCR Case No. 17-03575 ) Applicant for Security Clearance ) Appearances For Government: Nicole A. Smith, Esq., Department Counsel For Applicant: Pro se ______________

STATEMENT OF CASE

______________ FOREMAN, LeRoy F., Administrative Judge: This case involves security concerns raised under Guideline F (Financial Considerations). Eligibility for access to classified information is denied. Statement of the Case Applicant submitted a security clearance application (SCA) on July 27, 2016. On November 9, 2017, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent him a Statement of Reasons (SOR) alleging security concerns under Guideline F. The DOD CAF acted under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) promulgated in Security Executive Agent Directive 4, National Security Adjudicative Guidelines (December 10, 2016), for all adjudicative decisions on or after June 8, 2017. Applicant answered the SOR on December 6, 2017, and requested a decision on the written record without a hearing. Department Counsel submitted the Government’s written case on July 11, 2018. On September 5, 2018, a complete copy of the file of 12/26/2018

relevant material (FORM) was sent to Applicant, who was given an opportunity to file objections and submit material to refute, extenuate, or mitigate the Government’s evidence. He received the FORM on September 17, 2018, and submitted a timely response. The case was assigned to me on December 14, 2018.

Findings of Fact1

Applicant disclosed in his SCA that he was in a payment plan with the IRS for federal income taxes. (FORM Item 2.) The SOR alleges that Applicant owes $11,564 in delinquent federal income taxes (SOR ¶ 1.a) and that he failed to timely file his federal income tax return for tax year 2016 (SOR ¶ 1.b). In Applicant’s answer to the SOR, he admitted both allegations with explanations. His admissions are incorporated in my findings of fact.

Applicant is a 52-year-old security-systems engineer employed by defense contractors since October 2012. He received a bachelor’s degree in information technology security in January 2009 and a master’s degree in information security assurance in January 2010. He has been employed as an adjunct professor at several universities since February 2010. He married in September 1993 and has four children, ages 23, 22, 17, and 16. He has held a security clearance since November 2012.

In Applicant’s answer to the SOR, he stated that his tax debt was due to “errors in my tax filing.” He did not provide any further details. He stated that he was making payments as required on a payment plan for the tax debt alleged in SOR ¶ 1.a. He did not provide any documentary evidence of a payment plan or payments. Department Counsel requested that he provide a tax transcript for 2014 showing payments, but he did not comply with the request. In Department Counsel’s submission, she pointed out the absence of documentation to support Applicant’s statements.

In Applicant’s response to the FORM, he submitted a document reflecting that he had made one $350 payment in May 2018 and five $200 payments from May through September 2018 on a debt for tax year 2014. However, the document does not contain any indicia that it was issued by the IRS. He did not submit any documentary evidence of a payment agreement. He asserted that he also made $200 payments in June through October 2018, but he submitted no documentation of these payments. He stated that he had reduced his indebtedness to the IRS from $11,564 to $7,005, but he provided no documentation to support his statement.

In Applicant’s answer to the SOR, he stated that he believed that he electronically filed his federal income tax return for tax year 2016, and that he had mailed a hard copy of the 2016 tax return to the IRS, but he provided no documentation to support his statement. In his response to the FORM, he repeated his statement that he had filed his 2016 return, elaborating that his tax return was received by the IRS and was processed

1 Applicant’s personal information is extracted from his security clearance application (FORM Item 2) unless otherwise indicated by a parenthetical citation to the record.

on June 18, 2018. However, he did not submit any documentary evidence in his SOR answer or response to the FORM showing that the 2016 return had been filed.

POLICIES

“[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to “control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865 § 2.

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies these guidelines in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available and reliable information about the person, past and present, favorable and unfavorable.

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk that the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information.

Clearance decisions must be made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 15-01253 at 3 (App. Bd. Apr.20, 2016).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005).

An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01- 20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531.

ANALYSIS

Guideline F, Financial Considerations

The security concern under this guideline is set out in AG ¶ 18:

Failure to live within one's means, satisfy debts, and meet financial obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual's reliability, trustworthiness, and ability to protect classified or sensitive information. . . . An individual who is financially overextended is at greater risk of having to engage in illegal or otherwise questionable acts to generate funds. . . .

This concern is broader than the possibility that a person might knowingly compromise classified information to raise money. It encompasses concerns about a person’s self-control, judgment, and other qualities essential to protecting classified information. A person who is financially irresponsible may also be irresponsible, unconcerned, or negligent in handling and safeguarding classified information. See ISCR Case No. 11-05365 at 3 (App. Bd. May 1, 2012).

Applicant’s responses to the SOR and the FORM and the documentary evidence in the FORM establish the following disqualifying conditions under this guideline:

AG ¶ 19(c): a history of not meeting financial obligations; and

AG ¶ 19(f): failure to file or fraudulently filing annual Federal, state, or local income tax returns or failure to pay annual Federal, state, or local income tax as required.

The following mitigating conditions are potentially applicable:

AG ¶ 20(a): the behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur and does not

cast doubt on the individual's current reliability, trustworthiness, or good judgment;

AG ¶ 20(b): the conditions that resulted in the financial problem were largely beyond the person's control (e.g., loss of employment, a business downturn, unexpected medical emergency, a death, divorce or separation, clear victimization by predatory lending practices, or identity theft), and the individual acted responsibly under the circumstances;

AG ¶ 20(c): the individual has received or is receiving financial counseling for the problem from a legitimate and credible source, such as a non-profit credit counseling service, and there are clear indications that the problem is being resolved or is under control;

AG ¶ 20(d): the individual initiated and is adhering to a good-faith effort to repay overdue creditors or otherwise resolve debts; and

AG ¶ 20(g): the individual has made arrangements with the appropriate tax authority to file or pay the amount owed and is in compliance with those arrangements.

None of these mitigating conditions are established. Applicant’s tax delinquencies are recent. He submitted no evidence of unusual circumstances or conditions beyond his control that caused him to incur the tax debt and fail to timely file his 2016 tax return. He submitted no evidence of counseling. Although he asserted that he was making payments, he submitted no documentary evidence of payments or a payment agreement, despite being reminded by Department Counsel at least twice of the need for documentation. When applicants assert that debts are being resolved, they are expected to present documentary evidence to support their assertions. ISCR Case No. 15-03363 at 2 (App. Bd. Oct. 19, 2016).

WHOLE PERSON CONCEPT

Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. In applying the whole- person concept, an administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all relevant circumstances and applying the adjudicative factors in AG ¶ 2(d).2

2 The factors are: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.

I have incorporated my comments under Guideline F in my whole-person analysis and applied the adjudicative factors in AG ¶ 2(d). Applicant submitted no evidence related to his job performance, professional reputation, or community involvement. Because he requested a determination on the record without a hearing, I had no opportunity to evaluate his credibility and sincerity based on demeanor. See ISCR Case No. 01-12350 at 3-4 (App. Bd. Jul. 23, 2003). After weighing the disqualifying and mitigating conditions under Guideline F, and evaluating all the evidence in the context of the whole person, I conclude Applicant has not mitigated the security concerns raised by his tax delinquencies.

FORMAL FINDINGS

I make the following formal findings on the allegations in the SOR:

Paragraph 1, Guideline F (Financial Considerations): AGAINST APPLICANT

Subparagraphs 1.a and 1.b:

Against Applicant

CONCLUSION

I conclude that it is not clearly consistent with the national security interests of the United States to continue Applicant’s eligibility for access to classified information. Clearance is denied.

LeRoy F. Foreman Administrative Judge