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ISCR 15-02935.a1: Guideline E security clearance appeal, denied (2017) · CASE

ISCR Case 15-02935.a1denied

Case headnote

ISCR Case No. 15-02935.a1

Jun 5, 2017· Hon. James E. Moody· appeal

Summary

A 48-year-old defense contractor employee was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The primary issues involved the applicant's failure to timely file federal and state tax returns from 2010 to 2014, and his subsequent omission of these tax problems on his security clearance application.

The judge determined that the applicant's failure to file tax returns was deliberate, reflecting poor judgment. Although the applicant attributed the non-disclosure on his application to a misunderstanding of the questions, this explanation was not sufficient to mitigate the concerns.

Ultimately, the judge concluded that the applicant's judgment issues remained unmitigated, despite some evidence presented in his favor. This led to the finding that the applicant did not demonstrate the reliability necessary for access to classified information, resulting in the denial of his security clearance.

Conditions referenced

Disqualifying

F.2.araisedFailure to File or Pay Taxes
E.2.araisedDeliberate Omission of Material Facts

Mitigating

F.3rejectedThe Individual Has Made a Good Faith Effort to Repay Overdue Taxes or Has Taken Significant Steps to Resolve Tax IssuesThe judge found that the applicant's failure to file was deliberate and did not demonstrate good judgment.
E.2.bappliedThe Individual Has Provided Truthful and Candid Information to the Security Clearance Process

Key rule quoted

“A person who fails repeatedly to fulfill his or her legal obligations, such as filing tax returns and paying taxes when due, does not demonstrate the high degree of good judgment and reliability required of those granted access to classified information.”
ISCR Case No. 15-08782 at 3 (App. Bd. Apr. 5, 2017)

Procedural posture

SOR issuedDec 31, 2015
Answer filed—
Hearing heldMar 23, 2017
Decision dateJun 5, 2017

Cite for

Denial of Security Clearance Due to Failure to File Taxes Under Guideline F
Consideration of Deliberate Non-disclosure of Tax Issues Under Guideline E
The Importance of Demonstrating Good Judgment and Reliability for Access to Classified Information.

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 who was denied a security clearance based on financial considerations and personal conduct. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding that the Judge properly considered the evidence and made sustainable findings.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJohn Grattan Metz, Jr. denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant contended that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the Judge properly weighed the evidence presented. The Board concluded that the Judge's findings were not arbitrary, capricious, or contrary to law.

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

William S. Fields
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; Guideline E DIGEST: The Judge made finding about most of the matters cited in Applicant’s appeal brief. Applicant has failed to rebut the presumption that the Judge considered all of the evidence in the record. Adverse decision affirmed. CASENO: 15-02935.a1 DATE: 06/05/2017 DATE: June 5, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-02935

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 December 31, 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 March 23, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge John Grattan Metz, Jr., 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 is a 48-year-old employee of a defense contractor. The SOR alleged, and the Government’s exhibits proved, that Applicant failed to file in a timely manner his Federal income tax returns for 2010-2012 and 2014 and his state tax returns for 2010-2014. He failed to disclose his tax issues on his 2012 security clearance application (SCA). He attributed the non-disclosure to overlooking the word “filed” in the SCA question. Applicant filed his 2010-2012 Federal tax returns at the end of April 2013 and his 2014 Federal tax return in December 2015. He thought he had filed his 2010 state tax return, but was mistaken. He did not file his 2010-2014 state tax returns until October 2015. He filed early his Federal and state tax returns for 2015. He acknowledged that some of his tax filing problems were organizational. The Judge’s Analysis The Judge found in favor of Applicant on the Guideline E falsification allegation and against him on the two Guideline F allegations addressing his failure to file his Federal and state income tax returns in a timely manner. Applicant has no outstanding Federal or state tax liability for the years in question. The failure to file was deliberate. He mostly disregarded these tax obligations for several years. The Judge concluded that judgment issues raised by his failure to file his income tax returns in a timely manner remain unmitigated.

DISCUSSION

Applicant contends that the Judge did not consider or properly weigh all relevant evidence. In doing so, he argues that he filed his tax returns and paid his taxes and that the Judge engaged in a fragmented and piecemeal analysis. His arguments are not persuasive. The Judge made findings about most of the matters cited in Applicant’s appeal brief. Applicant has failed to rebut the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 15-04856 at 2-3 (App. Bd. Mar. 9, 2017). The balance of Applicant’s arguments amount to a disagreement with the Judge’s weighing of the evidence. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. A party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. Id. We give due consideration to the Hearing Office case that Applicant cited in the appeal, but it is neither binding precedent on the Appeal Board nor sufficient to undermine the Judge’s decision. See, e.g., ISCR Case No. 14-03747 at 3 (App. Bd. Nov. 13, 2015). We further conclude the Judge considered the totality of the evidence in compliance with the whole-person analysis requirements. See Directive, Enclosure 2 ¶ 2. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. A person who fails repeatedly to fulfill his or her legal obligations, such as filing tax returns and paying taxes when due, does not demonstrate the high degree of good judgment and reliability required of those granted access to classified information. See, e.g., ISCR Case No. 15- 08782 at 3 (App. Bd. Apr. 5, 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: William S. Fields William S. Fields Administrative Judge Member, 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