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ISCR Case 12-04731.a1 — CASE

ISCR Case 12-04731.a1denied

Case Headnote

ISCR Case No. 12-04731.a1

Jan 13, 2015· Hon. Jeffrey D. Billett· appeal

Summary

A defense contractor, employed since 2004, was denied a security clearance under Guideline F (Financial Considerations) due to significant financial issues. The applicant admitted to failing to file tax returns for four years, from 2007 to 2010, and accumulated over $12,000 in delinquent debts. These issues were identified as disqualifying conditions under Adjudicative Guideline Paragraph 20(a).

The denial was upheld because the applicant failed to provide sufficient mitigating evidence. Specifically, there was no documentation of payments made towards the delinquent debts, nor any proof of participation in financial counseling. Additionally, the applicant did not submit evidence of work performance or character references that could attest to their trustworthiness.

Given the lack of evidence to address the financial concerns, the appeal board affirmed the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20(a)raisedFinancial 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 issuedMar 20, 2014
Answer filed—Applicant requested a decision on the written record.
Hearing heldSep 15, 2014
Decision dateJan 13, 2015

Cite For

Insufficient Evidence to Mitigate Financial Delinquencies Under Guideline F
Failure to Provide Evidence of Payments or Financial Counseling
Lack of Character References to Support Trustworthiness

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 argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and sustainable on the record.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDavid M. White — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The applicant argued 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 that the Judge's findings were supported by substantial evidence and that the applicant did not provide sufficient evidence to mitigate the security concerns raised by his financial delinquencies. The Board also noted that any potential error regarding the applicant's prior clearance status was harmless and did not affect the outcome.

Standard of review applied

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

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: The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The decision is sustainable on this record. Adverse decision affirmed. CASENO: 12-04731.a1 DATE: 01/13/2015 DATE: January 13, 2015 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-04731

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 March 20, 2014, 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 September 15, 2014, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge David M. White denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: 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 Applicant has worked for a Defense contractor since 2004. Divorced for nine years, he has two daughters who live with his former spouse. This is his first application for a clearance from the DoD, although he has held a clearance in the past. Applicant admitted 12 of the 16 SOR allegations. The SOR alleges that he did not timely file his Federal tax returns from 2007 through 2010. It also alleges that he has delinquent tax debts owed to the IRS. Applicant made inconsistent statements about his Federal tax issues, and he submitted no tax returns to clarify or corroborate his claims that he had eventually filed. He provided a copy of a repayment agreement with the IRS for tax years 2008 and 2009 but provided nothing regarding tax year 2010. He has provided no evidence of any payments toward his delinquent taxes. The SOR alleges twelve other delinquent debts, totaling $12,367. They became delinquent between 2005 and 2012. Although Applicant has a monthly surplus of $450 after expenses, he provided no evidence of payment of any of these debts. Applicant provided no evidence of financial counseling. Neither did he submit evidence of the quality of his work performance or of a track record regarding the handling of sensitive information. He submitted no character references describing his judgment, trustworthiness, or reliability. The Judge’s Analysis The Judge concluded that Applicant did not provide sufficient evidence to overcome the security concerns raised by his financial delinquencies. He stated that the weight to which his repayment agreement is entitled is reduced by the absence of any evidence of actual payment. In the whole-person analysis, the Judge stated that Applicant’s debts exceed $25,000, and they continue to grow as he fails to address them. He stated that there is no evidence that the debts arose from circumstances beyond Applicant’s control, nor is there evidence of the quality of his professional performance or descriptions of his judgment, trustworthiness, integrity, or reliabilty.

DISCUSSION

Applicant states that he has held a clearance for years without incident or concern. We note his answer in the security clearance application (SCA) in which he states that he has never had a clearance denied, suspended, or revoked. To the extent that he is arguing that the Judge did not consider this answer, he has not rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 11-10255 at 4 (App. Bd. Jul 28, 2014). To the extent that he is challenging the Judge’s finding that he provided no evidence regarding his track record of handling sensitive information, we conclude that the Judge’s material findings of security concern are supported by substantial evidence. See, e.g., ISCR Case No. 12-03420 at 3 (App. Bd. Jul. 25, 2014). Even if the Judge erred regarding this answer to the SCA, it did not likely affect the outcome of the case. Therefore, it is harmless. Applicant’s brief includes matters from outside the record. We cannot consider new evidence on appeal. Directive ¶ E3.1.29. 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