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ISCR Case 19-01938.a1 — CASE

ISCR Case 19-01938.a1denied

Case Headnote

ISCR Case No. 19-01938.a1

Mar 17, 2020· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, a divorced and remarried individual with four children, was denied clearance under Guideline F (Financial Considerations). The denial stemmed from the applicant's failure to file required tax returns for 2016, 2017, and 2018, and significant outstanding tax debt.

Specifically, the applicant owed over $45,000 in taxes, which was only partially satisfied. These issues raised disqualifying conditions under Adjudicative Guidelines Paragraphs 20(a) and 20(c).

The appeal board affirmed the denial, concluding that the applicant's arguments did not sufficiently mitigate the security concerns associated with the unfiled tax returns and substantial debt. The board emphasized the importance of fulfilling legal and financial obligations, leading to the final denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedFailure to File Tax Returns
AG ¶ 20(c)raisedDelinquent Debts

Key Rule Quoted

“A person who fails repeatedly to fulfill his or her legal obligations, such as filing tax returns when due, does not demonstrate the high degree of good judgment and reliability required of those granted access to classified information.”
— ISCR Case No. 17-01256 at 3 (App. Bd. Aug. 3, 2018)

Procedural Posture

SOR issuedJul 3, 2019
Answer filed—Applicant represented himself (pro se) in the proceedings.
Hearing held—Decision made on the written record.
Decision dateMar 17, 2020Appeal board decision affirmed the denial.

Cite For

Affirmation of Denial Under Guideline F for Failure to File Tax Returns
Insufficient Mitigation of Financial Considerations
Importance of Fulfilling Legal Obligations for 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.

Appeal at a glance· Full written decision

Affirmed

The appeal involved a denial of a security clearance based on financial considerations under Guideline F. The applicant argued that the Administrative Judge erred in her findings and analysis. The Board affirmed the decision, finding no harmful errors that would affect the outcome.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowNoreen Lynch — 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 argued that the Judge erred in her findings of fact.
Whole-person analysis — raised by the applicantRejected
Applicant contended that the Judge's whole-person analysis was erroneous.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant claimed that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

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 no harmful error in the Judge's decision, affirming that the findings were supported by substantial evidence and that the Judge's whole-person analysis complied with the required standards.

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 Y. 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: We note Applicant’s Answer to the SOR, in which he stated that he had requested filing extensions. However, there is nothing in the record or in Applicant’s appeal submission that would show that he had filed his returns on time, which is the gravamen of the case. Considering Applicant’s arguments as a whole, we find no error that would have affected the outcome of the decision. Therefore, any such errors are harmless. Adverse decision is affirmed. CASE NO: 19-01938.a1 DATE: 03/17/2020 DATE: March 17, 2020 ) In Re: ) ) ------------------------ ) ISCR Case No. 19-01938

) ) 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 July 3, 2019, 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 January 9, 2020, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Noreen Lynch 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 her findings of fact; whether the Judge’s whole-person analysis was erroneous; 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 and Analysis Applicant is divorced and remarried, with four children. He has worked for his current employer since 1995 and has held a security clearance since 2010. Applicant’s SOR contained one allegation: that he failed to file, as required, Federal and state income tax returns for tax years 2016, 2017, and 2018. Applicant admitted that he was late in requesting extensions for filing his tax returns. He provided proof of filing his tax returns for the years in question1 and stated that he was not a good bookkeeper. In addition to the above, Applicant owed over $45,000 in back taxes for 2016, but he has satisfied this debt. The Judge concluded that Applicant had not provided a sufficient explanation for his security-significant conduct. In the whole-person analysis, she noted Applicant’s employment status and his having held a clearance for several years. However, she also noted that he had filed his delinquent returns in 2019. The Judge concluded that Applicant had not met his burden of persuasion regarding mitigation.

DISCUSSION

Applicant challenges some of the Judge’s findings of fact. For example, he cites to evidence that his first marriage ended with the passing of his wife rather than divorce; that he has three rather than four living children; that he has worked for his current employer since 2017 rather than 1995; and that he filed requests for extensions. Although his appeal brief includes matters from outside the record that we cannot consider (Directive ¶ E3.1.29), the evidence within the record supports Applicant’s arguments concerning his family circumstances, employment history, and his having held a clearance prior to 2010. We note Applicant’s Answer to the SOR, in which he stated that he had requested filing extensions. However, there is nothing in the record or in Applicant’s appeal submission that would show that he had filed his returns on time, which is the gravamen of the case. Considering Applicant’s arguments as a whole, we find no error that would have affected the outcome of the decision. Therefore, any such errors are harmless. See, e.g., ISCR Case No. 18-02581 at 3 (App. Bd. Jan. 14, 2020). We conclude that the Judge’s material findings are supported by substantial evidence or constitute reasonable inferences that could be derived from the evidence. Id. Moreover, we conclude that the Judge’s whole person analysis complies with the requirements of Directive ¶ 6.3, in that she considered the totality of the evidence in reaching her decision. See, e.g., ISCR Case No. 18-02925 at 3 (App. Bd. Jan. 15, 2020).

The record supports a conclusion that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). A person who fails repeatedly to fulfill his or her legal obligations, such as filing tax returns 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. 17-01256 at 3 (App. Bd. Aug. 3, 2018). The Judge’s adverse 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 Y. Ra’anan Michael Y. 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 Applicant’s Response to the SOR shows that these returns were filed in 2019.