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ISCR Case 18-01482.a1 — CASE

ISCR Case 18-01482.a1denied

Case Headnote

ISCR Case No. 18-01482.a1

Sep 6, 2019· Hon. Michael Y. Ra'anan· appeal

Summary

The applicant, representing himself, was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from admitted significant tax deficiencies and falsifications made within his security clearance application.

Specifically, Disqualifying Conditions F3 (failure to file or timely file tax returns or pay taxes) and E2 (deliberate omission or falsification on a security clearance application) were raised. The applicant acknowledged these issues.

During the appeal, the applicant claimed due process violations, but the judge found no harmful error in these claims. Ultimately, the judge determined that the evidence presented was insufficient to overcome national security concerns, concluding that national security interests outweighed the applicant's arguments for clearance. The appeal was therefore denied.

Conditions Referenced

Disqualifying

F3appliedFailure to File or Pay Taxes
E2appliedDeliberately Providing False or Misleading Information

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, 2018
Answer filed—
Hearing heldJun 21, 2019
Decision dateSep 6, 2019

Cite For

Due Process Considerations in Security Clearance Hearings
Impact of Financial Issues on Security Clearance Eligibility
Importance of National Security in Clearance Decisions

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 and personal conduct. The Applicant raised a due process issue regarding the hearing process. The Board affirmed the Administrative Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDarlene D. Lokey Anderson — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline F

What the Board reviewed

Due-process / fairness — raised by the applicantRejected
Applicant contended he wasn't given an opportunity to explain his situation.

Why the Board ruled this way

The Board found that the Applicant was given adequate opportunity to present his case and did not establish any harmful error by the Administrative Judge. The decision was supported by substantial evidence and was not arbitrary or capricious.

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 E; Guideline F DIGEST: In his appeal brief, Applicant raises a due process issue. He contends that he “wasn’t given an opportunity to explain what happen[ed] to [him], or how [he] intended to remedy the problem[.]” He states that the Judge was constantly “looking at the clock like [he] was wasting her time[.]” He also indicated this conduct made him nervous and “as soon as [he] was rushed out of the court room a large number of men in suits piled into the room and [he] was swiftly discarded.” The transcript reflects that Applicant was asked questions about each of the SOR allegations and was given an opportunity to explain the circumstances surrounding each of them. At the end of the hearing, Applicant responded in the negative when asked whether he had any other evidence to present and responded in the affirmative when asked whether he rested his case. Furthermore, the record was left open for two weeks after the hearing to provide Applicant the opportunity to present additional matters. Applicant has not established that he was denied the due process afforded him under the Directive. Adverse decision affirmed. CASENO: 18-01482.a1 DATE: 09/06/2019 DATE: September 6, 2019 ) In Re: ) ) ------------------------ ) ISCR Case No. 18-01482 ) ) Applicant for Security Clearance ) )

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, 2018, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On June 21, 2019, after the hearing, Administrative Judge Darlene D. Lokey Anderson denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Under Guideline F, the SOR alleged that Applicant had failed to file his Federal and state income tax returns for ten years between 2002 and 2014; that he failed to file Federal and state income tax returns for 2015 and 2016 in a timely manner; that the IRS wrote off his 2003 Federal income tax debt; that he owes about $23,500 in past-due Federal taxes; and that he had four other delinquent debts totaling over $17,000. In responding to the SOR, Applicant admitted the Federal and state tax deficiencies. He also admitted one of the other alleged debts and denied the other three. The Judge found against Applicant on the Federal and state tax deficiencies and on two of the four other delinquent debts. Under Guideline E, the SOR alleged that Applicant falsified a response to a question in a 2017 security clearance application and falsified four responses to questions in a 2018 interrogatory. These questions at issue involved his filing of Federal and state tax returns. In his SOR response, he admitted each of the falsification allegations. The Judge found against Applicant on each of the falsification allegations. In his appeal brief, Applicant raises a due process issue. He contends that he “wasn’t given an opportunity to explain what happen[ed] to [him], or how [he] intended to remedy the problem[.]” Appeal Brief at 1. He states that the Judge was constantly “looking at the clock like [he] was wasting her time[.]” Id. He also indicated this conduct made him nervous and “as soon as [he] was rushed out of the court room a large number of men in suits piled into the room and [he] was swiftly discarded.” Id. The transcript reflects that Applicant was asked questions about each of the SOR allegations and was given an opportunity to explain the circumstances surrounding each of them. At the end of the hearing, Applicant responded in the negative when asked whether he had any other evidence to present (Tr. at 109) and responded in the affirmative when asked whether he rested his case (Id.). Furthermore, the record was left open for two weeks after the hearing to provide Applicant the opportunity to present additional matters. (Tr. at 108). Applicant has not established that he was denied the due process afforded him under the Directive. Applicant’s brief also explains the circumstances surrounding his tax problems and his intentions for resolving them. His arguments, however, are neither enough to rebut the presumption that the Judge considered all of the evidence in the record 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. 17-02488 at 3 (App. Bd. Aug. 30, 2018). He further indicates that he will lose a job opportunity if he is denied a security clearance. The Directive does not permit us to consider the impact of an unfavorable decision. See, e.g., ISCR Case No. 14-02619 at 3 (App. Bd. Apr. 7, 2016). Applicant has not established that the Judge committed any harmful error. 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