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ISCR Case 19-04043 — CASE

ISCR Case 19-04043denied

Case Headnote

ISCR Case No. 19-04043

Feb 2, 2022· Hon. Moira D. Modzelewski· appeal

Summary

A security clearance applicant, representing himself, was denied clearance under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from the applicant's failure to pay federal and state income taxes for multiple years, accumulating approximately $40,000 in delinquent taxes.

Additionally, the applicant's personal conduct raised concerns, specifically his termination from a previous job due to unacceptable behavior involving the inappropriate touching of employees. These issues were cited as disqualifying conditions.

The applicant appealed the decision, but the appeal was denied. The applicant did not challenge the judge's findings regarding the tax and personal conduct issues, and the judge determined that the applicant's arguments were insufficient to demonstrate any error in the initial denial.

Conditions Referenced

Disqualifying

AG ¶ 20appliedPersonal Conduct
AG ¶ 19appliedFinancial Considerations

Key Rule Quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with national security.’”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedApr 10, 2020
Answer filed—
Hearing heldNov 29, 2021
Decision dateFeb 2, 2022

Cite For

Denial of Security Clearance Due to Financial Issues Under Guideline F
Denial of Security Clearance Due to Personal Conduct Issues Under Guideline E
Insufficient Evidence to Overturn a Judge's Decision on Appeal

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 security clearance based on financial considerations and personal conduct. The applicant did not challenge the findings of fact but argued that the Judge failed to consider his consistent payments on revolving credit. The Board affirmed the decision, finding no harmful error in the Judge's weighing of the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCandace Le’i Garcia — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant contended the Judge's decision lacked consideration of his consistent payments on revolving credit.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's weighing of the evidence was arbitrary and capricious.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision and concluded that the decision was sustainable on the record, with the Judge articulating a satisfactory explanation for the denial of the security clearance.

Standard of review applied

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

Appeal Board panel

James F. Duffy — Chair
Jennifer I. Goldstein
Moira D. Modzelewski

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

APPEARANCES

_______________________________________________ ) In the matter of: )

)

-------------------------- )

ISCR Case No. 19-04043

)

) Applicant for Security Clearance ) _______________________________________) DEPARTMENT OF DEFENSE DEFENSE LEGAL SERVICES AGENCY DEFENSE OFFICE OF HEARINGS AND APPEALS APPEAL BOARD POST OFFICE BOX 3656 ARLINGTON, VIRGINIA 22203 (703) 696-4759 Date: February 2, 2022

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 April 10, 2020, 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). On November 29, 2021, after conducting a hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Candace Le’i Garcia 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 failed to pay Federal and state income taxes as required for 2010-2012, that he failed to file and pay Federal and state income taxes as required for 2013-2018, that he owed about $40,000 in delinquent Federal and state taxes, and that he had four other delinquent debts totaling about $14,000. Under Guideline E, the SOR alleged that Applicant was terminated from a job in 2014 for unacceptable behavior involving inappropriate touching of company and non-company employees. The Judge found against

Applicant on the three tax allegations and the Guideline E allegation, and she found in favor on the remaining debt allegations. In his appeal brief, Applicant does not challenge any of the Judge’s findings of fact. Rather, he contends the Judge’s decision was based upon a lack of consideration of his consistent payments on his revolving credit over the past five years leading to full repayment of all but one of those accounts. This contention need not be addressed because the Judge found in favor of him on the allegations involving the non-tax debts. In her decision, the Judge found that, although Applicant “completed” the delinquent Federal and state income tax forms in June 2021, “he had yet to mail them to his spouse for her signature, which was required before filing them.” Decision at 3. We are unable to discern what Applicant now means by stating in his brief that his “federal and state income taxes have been all completed[.]” Appeal Brief at 1. To the extent he is contending the delinquent tax returns have been filed, such a statement constitutes new evidence that the Appeal Board cannot consider. Directive ¶ E3.1.29. The balance of Applicant’s arguments amount to a disagreement with the Judge’s weighing of the evidence. For example, Applicant argues that he is working with the IRS and state tax authority to determine a repayment plan for the delinquent taxes and that his “character subsequent to the single incident of inappropriate touching in 2014 has been exemplary[.]” Appeal Brief at 1. None of his arguments are sufficient to demonstrate the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 18-02592 at 5 (App. Bd. Jan. 6, 2021). Applicant failed to establish that the Judge committed any harmful error or that he should be granted any relief. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on the record. “The general standard is that a clearance may be granted only when ‘clearly consistent with 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 national security.”

ORDER

The decision is AFFIRMED. Signed: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: Jennifer I. Goldstein Jennifer I. Goldstein Administrative Judge Member, Appeal Board Signed: Moira D. Modzelewski Moira D. Modzelewski Administrative Judge Member, Appeal Board