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ISCR Case 15-04003.a1 — CASE

ISCR Case 15-04003.a1denied

Case Headnote

ISCR Case No. 15-04003.a1

May 25, 2017· Hon. James E. Moody· appeal

Summary

A military veteran with a bachelor's degree was denied a security clearance under Guideline F, Financial Considerations, primarily due to unresolved tax debts and a lack of demonstrated financial responsibility. The applicant asserted that she did not owe the taxes in question, but the judge found no evidence to substantiate this claim.

Key reasons for the denial included the applicant's failure to provide proof that her tax debts were resolved and her inability to demonstrate that her financial problems were unlikely to recur. Additionally, she did not substantiate her claim of not owing the state taxes alleged in the Statement of Reasons.

Disqualifying conditions under Guideline F, specifically AG ¶ 20, were raised, while mitigating conditions under AG ¶ 21 were applied. However, these were insufficient to overcome the concerns regarding her financial responsibility. The appeal was subsequently denied, upholding the original decision.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe applicant did not provide sufficient evidence to mitigate the financial concerns.

Key Rule Quoted

“In a DOHA proceeding, it is the applicant’s job to present evidence in mitigation of the concerns raised by an SOR.”

Procedural Posture

SOR issuedDec 2, 2015
Answer filed—
Hearing heldMar 24, 2017
Decision dateMay 25, 2017

Cite For

Applicant's Burden to Present Evidence in Mitigation of SOR Concerns
Insufficient Evidence of Financial Responsibility Under Guideline F
Due Process Considerations in Presenting Evidence 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 an applicant who was denied a security clearance due to financial concerns under Guideline F. The applicant argued that she was not given a fair opportunity to present evidence and that the Judge's decision was arbitrary. The Board affirmed the Judge's decision, finding that the applicant did not provide sufficient evidence to mitigate the concerns raised.

Appealed bythe applicant

Applicant representationAttorney

Judge belowEric H. Borgstrom — denied the clearance

Decided onthe written record

Guidelines belowGuideline F

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant argued that she was denied an opportunity to present evidence and that the Judge's 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 applicant failed to present sufficient evidence to mitigate the financial concerns raised in the SOR. The applicant was not denied due process and was given adequate notice of her rights to present evidence.

Standard of review applied

No de-novo re-decisionNo new evidence on appealProcedural compliance

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 DIGEST: In a DOHA proceeding, it is the applicant’s job to present evidence in mitigation of the concerns raised by an SOR. Although pro se applicants are not held to the standards of attorneys, they are expected to take reasonable steps to protect their interests. Adverse decision affirmed. CASENO: 15-04003.a1 DATE: 05/25/2017 DATE: May 25, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-04003

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Turkessa B. Rollins, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On December 2, 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 decision on the written record. On March 24, 2017, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Eric H. Borgstrom 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 she was denied an opportunity to present evidence 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 served in the military from 1990 until 2011, receiving an honorable discharge at the conclusion of her service. She holds a bachelor’s degree. In 1999, Applicant was discharged in Chapter 13 bankruptcy. Beginning in 2001, Applicant started a business, which failed in 2011, and a business operated by her husband failed in 2010. Due to these failures, Applicant experienced financial difficulty, resulting in a second Chapter 13 bankruptcy petition that she filed in 2011. Applicant’s petition listed over $500,000 in liabilities, which included state income tax debts for 2002 and 2003 in the combined amount of about $2,400. The discharge order noted that some debts, such as taxes, may not be discharged, and Applicant provided no documentation to show that her tax debts were resolved through the bankruptcy. Applicant denied that she owed state taxes for the years in question, claiming that she lived in another state at the time. However, in her security clearance application (SCA) she disclosed that, from 2001 through 2005, she was in fact residing in the state claiming the tax obligation. Moreover, Applicant listed the delinquent taxes on her bankruptcy petition. She provided no evidence to substantiate her claim that she did not owe the taxes alleged in the SOR. The Judge’s Analysis The Judge resolved two allegations regarding Applicant’s bankruptcy petitions in her favor. However, he stated that she had not provided evidence that her tax debts were resolved. “More importantly, she did not provide any evidence to show that the circumstances leading to her recent bankruptcy are unlikely to recur or to show financial responsibility.” Decision at 5. He stated that she had provided no corroborating evidence in support of her contention that she did not in fact owe the state taxes alleged in the SOR. He stated that Applicant failed to demonstrate that she is financially responsible.

DISCUSSION

Applicant’s appeal and Department Counsel’s reply brief include matters from outside the record, which we generally cannot consider. Directive ¶ E3.1.29. However, we will consider new evidence insofar as it bears upon threshold issues such as due process or jurisdiction. See, e.g., ISCR Case No.14-00812 at 2 (App. Bd. Jul. 8, 2015). Applicant argues that, as a layperson, she did not fully understand the sort of documentary evidence that would have mitigated the concerns in her case. She argues that Department Counsel, “[f]or some unknown reason,” did not supplement the record with updated bankruptcy documents. Appeal Brief at 3-4. Applicant did not respond to the File of Relevant Material (FORM), which was transmitted to her in March 2016. Decision at 2. In February 2017, the Judge reopened the record to enable the parties to provide supplementary evidence, in light of the time that had transpired since Applicant’s receipt of the FORM. Applicant submitted documents relevant to her circumstances. However, as stated above, the Judge concluded that Applicant had not mitigated the concerns arising from her tax delinquencies. The record shows that Applicant received notice of her right to provide a documentary response to the FORM. She received notice in the FORM itself, in the cover letter accompanying it, and in the Directive, a copy of which was included with the FORM. There is no reason to believe that Applicant was denied adequate notice of her right to submit evidence. Indeed, despite this notice, she made no response until prompted by the Judge in February 2017. Neither Department Counsel nor the Judge were obligated to obtain and present mitigating evidence on Applicant’s behalf. See, e.g., ISCR Case No. 12-02329 at 3 (App. Bd. Aug. 17, 2015);1 ISCR Case No. 14- 03062 at 3 (App. Bd. Sep. 11, 2015). In a DOHA proceeding, it is the applicant’s job to present evidence in mitigation of the concerns raised by an SOR. Directive ¶ E3.1.15. Although pro se applicants are not held to the standards of attorneys, they are expected to take reasonable steps to protect their interests. See, e.g., ISCR Case No. 12-02371 at 3 (App. Bd. Jun. 30, 2014). In that regard, DOHA provided Applicant with guidance concerning, among other things, her right to employ counsel or to obtain other representation in presenting her case. DOHA Cover Letter, dated February 25, 2016. Applicant was not denied the due process afforded by the Directive. Applicant argues that the Judge did not properly weigh the evidence. She cites to evidence that her taxes were included in her more recent bankruptcy discharge. However, the Judge’s conclusion that Applicant had not provided enough evidence to resolve the issues surrounding her delinquent taxes was consistent with the evidence that was before him. In any event, the Judge’s adverse decision relied not only on the tax delinquencies, but also on a paucity of evidence to show that Applicant’s financial problems are unlikely to recur. Applicant’s argument consists, in effect, of an alternative interpretation of the record, which is not enough 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. 15-08842 at 3 (App. Bd. Feb. 14, 2017). The Judge examined the relevant evidence 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.”

FOOTNOTES

1 “A Judge is an impartial fact finder. As such, a Judge has no authority to advise an applicant on the quantum of evidence sufficient to mitigate the concerns raised in an SOR. Neither is a Department Counsel authorized to advise an applicant on how to present his or her case or otherwise to act as an advocate for an opposing party. For them to do otherwise would be inconsistent with their respective duties to make findings and conclusions or to represent the interest of the U.S.” Internal citations omitted. 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