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ISCR Case 14-06093.a1 — CASE

ISCR Case 14-06093.a1denied

Case Headnote

ISCR Case No. 14-06093.a1

Dec 4, 2015· Hon. Jeffrey D. Billett· appeal

Summary

A defense contractor employee with a military background was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The applicant had not filed tax returns since 2009, creating significant financial issues. Additionally, a history of criminal offenses, including felonies, raised doubts about his reliability and trustworthiness.

The applicant's explanations for these issues were deemed unpersuasive by the judge. Disqualifying conditions AG ¶ 20 and AG ¶ 15 were specifically cited.

Despite evidence of good character presented by the applicant, the appeal board found his explanations insufficient to resolve the doubts regarding his reliability and trustworthiness, ultimately leading to the denial of his security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

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 issuedJan 28, 2015
Answer filed—
Hearing heldSep 14, 2015
Decision dateDec 4, 2015

Cite For

Denial Based on Failure to File Tax Returns Under Guideline F
Impact of Criminal History on Security Clearance Under Guideline E
Credibility Determinations in Security Clearance Cases

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 argued that the Judge erred in concluding that his conduct raised security concerns and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJames F. Duffy — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse decision was arbitrary, capricious, or contrary to law.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge erred in concluding that his conduct raised security concerns.

Why the Board ruled this way

The Board found that the Judge's conclusions regarding the applicant's conduct and its implications for security clearance were supported by substantial evidence and not arbitrary or capricious.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference 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; Guideline E DIGEST: As security clearance decision is not a determination of an applicant’s loyalty. Adverse decision affirmed. CASENO: 14-06093.a1 DATE: 12/04/2015 DATE: December 4, 2015 In Re: -------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-06093

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On January 28, 2015, 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 September 14, 2015, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge James F. Duffy 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 concluding that Applicant’s conduct raised security concerns 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 Applicant works for a Defense contractor, a position he has held since January 2000. He has completed some college courses. Applicant served in the U.S. military from 1981 to 1984 and in the Reserves from 1986 to 1988. He has been divorced three times. In his security clearance application, Applicant disclosed that he had not filed his Federal income tax returns since 2009 because he did not have access to his personal records following a divorce and because he lost some records to water damage. He also testified that he delayed filing because he was concerned that state authorities would seize his refunds to pay for past-due child support obligations. At the hearing he testified that he had filed for tax years 2011 through 2014 but failed to provide corroborating evidence. He testified that he did not file his returns for 2009 or 2010 because his tax preparer told him that he could not go back that far. Applicant submitted copies of the first two pages of his returns for 2012 through 2014. He stated that he was providing a copy of the 2011 return but in fact did not. The copies of the returns that he provided were neither signed nor dated. There is no evidence that the IRS received the returns or that Applicant paid any taxes owed. Applicant’s tax delinquencies were cross-alleged under Guideline E. In addition, the SOR alleged other Personal Conduct concerns of a criminal nature. Some were misdemeanor offenses, such a bounced check, operating a vehicle off an established road, and an assault. The SOR also alleged some traffic offenses. However, other offenses were felonies, for example, aggravated battery and cruelty toward a child (spanking with a belt, leaving severe bruises). On another occasion, Applicant was charged with battery and resisting arrest, arising from an incident in which neighbors stated that Applicant had made a pass at a woman at a party and had thrown a table at someone. The charges were dropped after Applicant wrote a letter of apology to his neighbors and performed 30 hours of community service. Applicant submitted letters of reference from supervisors, co-workers, and friends attesting to his reliability, honesty, dedication, integrity, and good character. While in the military he was twice commended for outstanding performance of duty. He also received the Good Conduct Medal. He has worked for Defense contractors for 30 years, and his 2015 performance evaluation rated him in the highest category. The Judge’s Analysis Although concluding that Applicant had most likely filed his tax returns for 2012 through 2014, the Judge stated that, on the whole, Applicant had not acted responsibly regarding his tax obligations. He found Applicant’s explanation for his conduct to be unpersuasive and concluded that the conduct cast doubt on his reliability, trustworthiness, and good judgment. Regarding the Guideline E concerns, the Judge stated that some of the offenses were serious. Although others, viewed in isolation, were of minimal significance, the Judge concluded that the record as a whole showed a pattern of unreliable behavior. In the whole-person analysis, the Judge noted Applicant’s military service and his many years of working for Defense contractors. Nevertheless, the Judge concluded that the record left him with unresolved doubts about Applicant’s fitness for a clearance.

DISCUSSION

Applicant argues that “[t]here is no evidence to show that the [Applicant] did not file his past tax returns and that this was not a mistake that will recur in the future.” He also argues that “[t]here is no evidence to show that the [Applicant] does not have an undying loyalty to the United States and that he or his past conduct is a threat to National Security.” Applicant contends that, as a consequence, “the ‘conditions that could raise a security concern’” under both Guidelines are not applicable. Appeal Brief at 4-5. We note that a security clearance determination is not a determination as to an applicant’s loyalty. Directive, Enclosure 1, SECTION 7. See ISCR Case No. 12-08412 at 2 (App. Bd. Sep. 11, 2015). Neither does the Government have to show that an applicant has compromised national security before it can render an adverse clearance decision. See, e.g., ISCR Case No. 14-04648 at 3 (App. Bd. Sep. 9, 2015). To the contrary, the Directive presumes a nexus between admitted or proven conduct under any of the Guidelines and an applicant’s eligibility for a security clearance. See, e.g., ISCR Case No. 14-04648 at 3, supra. In this case, Applicant’s failure without reasonable excuse to file his taxes in a timely manner and his various criminal and traffic offenses, viewed as a totality, support the Judge’s conclusion that his conduct raised concerns under both Guidelines. Applicant’s argument is not enough to rebut the presumption of nexus. Applicant cites to his good character evidence, his duty performance, and his military service. He also cites to his claims that he had filed all of his tax returns, noting that the Judge found that Applicant had most likely filed his returns for 2012 through 2014. He argues that this finding shows that the Judge found Applicant’s testimony credible. Applicant’s argument is not enough to rebut the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 12-08412 at 2, supra. Moreover, although the Judge found that Applicant had probably filed some of his tax returns,1 he concluded that Applicant’s stated reasons for his delinquencies were not persuasive. We give deference to a Judge’s credibility determination. Directive ¶ E3.1.32.1. Applicant’s arguments are not sufficient to undermine the Judge’s evaluation of Applicant’s credibility. Neither are they 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. 14-05251 at 3-4 (App. Bd. Oct. 5, 2015). Applicant cites to two Hearing Office cases that he contends support his effort to obtain a favorable decision. Hearing Office cases are not binding on other Hearing Office Judges or on the Appeal Board. See, e.g., ISCR Case No. 14-02632 at 3 (App. Bd. Aug. 28, 2015). These cases provide no reason to conclude that the Judge’s decision was erroneous. 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 To the extent that Applicant is challenging the Judge’s finding that he had probably filed his returns for 2012 through 2014 but had not demonstrated that he had filed for the previous years, we conclude that the Judge’s findings are sustainable under the standard for factual sufficiency set forth in Directive ¶ E3.1.32.1.