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ISCR 12-03420.a1: Guideline F security clearance appeal, denied (2014) · CASE

ISCR Case 12-03420.a1denied

Case headnote

ISCR Case No. 12-03420.a1

Jul 25, 2014· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline F (Financial Considerations) due to unresolved financial delinquencies. The applicant had a federal tax lien and multiple debts, including student loans, totaling over $54,000. These issues were identified as disqualifying conditions under Adjudicative Guideline Paragraph 19.

The judges determined there was insufficient evidence to demonstrate responsible financial management or any substantive attempts by the applicant to address the outstanding debts. Consequently, the applicant's financial issues were deemed to pose a security concern.

Based on these findings, the denial of the security clearance was affirmed.

Conditions referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations

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 issuedDec 16, 2013
Answer filed—Applicant represented himself (pro se) in the proceedings.
Hearing heldMay 15, 2014
Decision dateJul 25, 2014Appeal affirmed the denial.

Cite for

Unresolved Financial Delinquencies Under Guideline F
Insufficient Evidence of Responsible Financial Management
Importance of National Security in Clearance Determinations

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 an applicant seeking a security clearance who was denied due to financial considerations under Guideline F. The applicant challenged the Judge's findings regarding a tax lien and the overall decision. The Board affirmed the denial, finding no harmful error in the Judge's decision and noting that the applicant's financial issues were significant and unresolved.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoan Caton Anthony 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's findings of fact contained errors.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant contended that the Judge's 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 that the Judge's findings were supported by substantial evidence and that any potential error was harmless given the totality of the applicant's financial delinquencies. The Judge's conclusions were not arbitrary or capricious and were consistent with the evidence presented.

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)
Jeffrey D. Billett
James E. Moody

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: There is record evidence which supports the challenged finding regarding a Tax lien. Even if the finding was error, it would be harmless given the totality of Applicant’s delinquent indebtedness. Adverse decision affirmed. CASENO: 12-03420.a1 DATE: 07/25/2014 DATE: July 25, 2014 In Re: -----

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-03420

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 December 16, 2013, 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 May 15, 2014, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Joan Caton Anthony 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’s findings of fact contain errors and whether the Judge’s decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant seeks a clearance in connection with his employment by a Government contractor. He attended college intermittently from 2004 until 2011, when he graduated with a bachelor’s degree. During college he worked during summer and academic breaks and from 2008 until 2010. After graduation he began working full time. Applicant’s SOR alleges 12 delinquent debts, mostly for student loans totaling $54,488. He also has an account in collection status and a federal tax lien entered against him in 2007 in the amount of $9,539. Applicant attributed his problems in part to expenses associated with his having traveled from home to college. He stated that his current financial situation is “very tight” and that he is living paycheck to paycheck. Decision at 3. In his Response to the SOR, Applicant denied the federal tax lien. He submitted nothing to show payment of his other debts. In his clearance interview, he stated that he had never filed federal tax returns because he believed as a student he did not have to. He provided a tax transcript from 2007 showing his wages and earnings, but he failed to provide documentation regarding taxable earning for prior years. He did have employment from 2003 to 2004 and again in 2006, when, for two months, he worked at a job in which he was compensated by commissions. He experienced periods of unemployment from June 2004 until May 2006 and again from June 2006 until June 2007. Applicant entered into an agreement with a financial aid firm to assist in consolidating his student loan debts. He will pay $69.49 a month for 300 months, although it is not clear from the record that he has made any payments. He provided no personal financial statement, nor did he provide evidence of his income, expenses, current debts, savings, or other income sources. He has not had financial counseling. The Judge’s Analysis The Judge concluded that Applicant’s circumstances raised security concerns. Though noting his claim that the tax lien was not his, the Judge cited to his credit report in support of her finding to the contrary. She stated that Applicant’s financial delinquencies are unresolved. She stated that, despite evidence that Applicant’s problems were affected by circumstances outside his control, such as his unemployment, he had presented insufficient evidence of responsible action, such as contacting creditors, seeking forbearance, etc. She stated that, given the record before her, she was not able to conclude that Applicant’s problems were under control. In the whole-person analysis, the Judge noted that Applicant has been aware of his financial problems since at least 2011, when he was interviewed for his clearance. However, he has presented insufficient evidence of attempts to address these problems.

DISCUSSION

Applicant challenges the Judge’s finding that the tax lien is legitimately his. We note the 2011 credit report, which lists this lien among Applicant’s other debts.1 Item 9. We also note his admission to having failed to file tax returns for 2006 and 2007. Item 6, Answers to Interrogatories, at 8. This evidence supports the challenged finding. Even if the Judge erred, however, it did not likely affect the outcome of the case, in view of the magnitude of Applicant’s other admitted delinquencies. The Judge’s material findings of security concern are based upon substantial evidence or constitute reasonable inferences or conclusions that could be drawn from the evidence. Applicant has cited to no harmful error in the Judge’s findings. See, e.g., ISCR Case No. 10-00046 at 3 (App. Bd. Oct. 1, 2013). Applicant cites to evidence of his agreement with the financial aid firm and his plan to negotiate with the creditor for the collection account. The Judge made findings about much of this evidence. However, her conclusion that Applicant has not presented evidence of actual debt repayment is consistent with the record. Her findings, and Applicant’s admissions, about the extent of his financial problems, and the Judge’s conclusions about the paucity of evidence in mitigation, support her adverse decision. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record, nor has he shown that the Judge mis-weighed the evidence. See, e.g., ISCR Case No. 11-13984 at 3 (App. Bd. Feb. 20, 2014). The Judge examined the relevant data 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, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information 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: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board

FOOTNOTES

1 Item 9 shows that a federal tax lien was filed against Applicant in August 2007. Applicant Exhibit (AE) A is a document asserting that the IRS has no tax lien against Applicant for tax year 2007. AE A does not on its face contradict Item 9 or the challenged finding by the Judge. Obviously, a lien filed in August 2007 would be for one or more prior tax years.