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ISCR Case 15-00532.a1 — CASE

ISCR Case 15-00532.a1denied

Case Headnote

ISCR Case No. 15-00532.a1

Jun 30, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, represented by counsel, was denied a security clearance under Guideline F (Financial Considerations) due to significant concerns regarding their financial responsibility. The denial stemmed primarily from the applicant's deliberate failure to file both federal and state income tax returns for the years 2009 and 2010.

The applicant's explanation of procrastination was not accepted as a valid excuse for these failures. Furthermore, the subsequent late filing of these tax returns in 2016 did not sufficiently mitigate the security concerns that had been raised.

Despite the applicant's assertions of candor and a history of holding previous clearances, these factors were deemed insufficient to overcome the serious security implications of the knowing and deliberate failure to meet tax obligations. Consequently, the denial of the security clearance was affirmed.

Conditions Referenced

Disqualifying

F.1raisedFailure to File or Pay Taxes

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, 2015
Answer filed—
Hearing heldApr 10, 2017
Decision dateJun 30, 2017

Cite For

Deliberate Failure to Comply with Tax Obligations Under Guideline F
Insufficient Mitigation of Security Concerns Despite Claims of Candor
Importance of Compliance with Government Regulations for National Security

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 was filed by the applicant after the Administrative Judge denied his request for a security clearance based on financial considerations. The applicant argued that the Judge failed to consider all evidence and misapplied the whole-person concept. The Board affirmed the decision, finding no harmful error in the Judge's analysis.

Appealed bythe applicant

Applicant representationAttorney

Judge belowWilford H. Ross — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge failed to consider all of the record evidence.
Whole-person analysis — raised by the applicantRejected
The Judge failed to apply properly the whole-person concept.

Why the Board ruled this way

The Board found that the Judge considered all relevant evidence and articulated a satisfactory explanation for the decision, affirming that the failure to file tax returns raised significant security concerns.

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
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: Applicant cites to his candor in admitting his security-significant conduct and to his having held a clearance for several years without incident or concern. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. Adverse decision affirmed. CASENO: 15-00532.a1 DATE: 06/30/2017 DATE: June 30, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-00532

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Roxana Aftahi, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On December 16, 2015, 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 hearing. On April 10, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Wilford H. Ross 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 failed to consider all of the record evidence and whether the Judge failed to apply properly the whole-person concept. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant failed to filed Federal and state income tax returns for 2009 and 2010. His state tax returns were not alleged in the SOR, but the Judge stated that he was considering them on the issues of mitigation and the whole-person concept. His admitted reason for these failures was procrastination. He stated that he had no good excuse and that he has been “a chronic procrastinator . . . for most of [his] life.” Decision at 2. Applicant admitted his failure to have filed his returns in his 2012 security clearance application and subsequently in his interview conducted later that year. He stated that he intended to file his returns by the end of 2012. Applicant filed the delinquent returns in 2016. The Judge held the record open for Applicant to provide documents confirming that he had filed his returns. He did not submit anything. The Judge’s Analysis The Judge cited to evidence that Applicant had known for years about the Government’s concern over his failure to have filed his returns, rendering his failure to address the problem both deliberate and knowing. Filing as recently as he did, assuming that Applicant actually did so, is not sufficient to mitigate the concerns raised by the evidence.

DISCUSSION

Applicant cites to his candor in admitting his security-significant conduct and to his having held a clearance for several years without incident or concern. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 13-00502 at 3 (App. Bd. Mar. 7, 2017). Contrary to Applicant’s challenge to the Judge’s whole- person analysis, the Judge satisfied the requirements of Directive ¶ 6.3, in that he considered the totality of the evidence in reaching his decision. See, e.g., ISCR Case No. 14-06653 at 3 (App. Bd. Nov. 18, 2016). The Hearing Office case that Applicant cites is not sufficient to undermine the Judge’s overall decision. In any event, Hearing Office cases are not binding on other Hearing Office Judges or on the Appeal Board. See, e.g., ISCR Case No. 15-01416 at 3 (App. Bd. Feb. 15, 2017). The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. Failure to file tax returns suggests that an applicant has a problem complying with well- established government rules and regulations. Voluntary compliance with such rules and regulations is essential for protecting classified information. See, e.g., ISCR Case No. 15-03208 at 3 (App. Bd. Mar. 7, 2017). 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board