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ISCR Case 15-04986.a1 — CASE

ISCR Case 15-04986.a1denied

Case Headnote

ISCR Case No. 15-04986.a1

Apr 21, 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 unresolved tax delinquencies. Specifically, the applicant failed to file state income tax returns for both 2012 and 2013.

During the review process, the applicant offered inconsistent explanations for these failures, which raised concerns regarding his financial responsibility. The appeal board ultimately affirmed the denial, concluding that the applicant did not meet the burden of persuasion required to mitigate the disqualifying conditions under Guideline F.1.

Therefore, the security clearance was DENIED.

Conditions Referenced

Disqualifying

F.1raisedFailure to File or Pay Taxes as Required

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 21, 2015
Answer filed—
Hearing heldFeb 1, 2017Applicant requested a decision on the written record.
Decision dateApr 21, 2017Appeal board affirmed the adverse decision.

Cite For

Failure to File Taxes Raises Concerns Under Guideline F
Inconsistent Explanations Can Detract From an Applicant's Credibility
Burden of Persuasion Lies with the Applicant for Mitigation.

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 from a denial of a security clearance based on financial considerations under Guideline F. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful error in the Judge's analysis or conclusions.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRobert J. Tuider — 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
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 examined the relevant evidence and articulated a satisfactory explanation for the decision, which was sustainable on the record.

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
William S. Fields

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 evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on this record. Adverse decision affirmed. CASE NO: 15-04986.a1 DATE: 04/21/2017 DATE: April 21, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-04986

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Richard L. Morris, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On December 21, 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 February 1, 2017, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Robert J. Tuider 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 failed to file his state income tax returns for 2012 and 2013. He filed his 2012 return in 2015 and his 2013 return in 2016. Applicant paid about $55 in satisfaction of his 2012 tax delinquency and $6 toward satisfying his $76 delinquency for 2013. Applicant made inconsistent statements about his reason for having failed to file and pay his taxes. In his security clearance application, he stated that he had forgot. In his security clearance interview, he stated that he had not filed his 2012 return because he did not have the funds. In his Answer to the SOR, he attributed his failures to file to oversight. He also stated that he thought he had filed his 2013 return until he had received “notification” that he confirmed with the state taxing authorities. Decision at 3. Applicant took exception to Department Counsel’s argument that he had resolved his tax problems only because he was undergoing a renewal of his clearance. He stated that he resolved his tax problems because he understood his obligation to do so. The Judge’s Analysis The Judge concluded that Applicant’s tax delinquencies raised concerns under Guideline F. He also concluded that Applicant had not mitigated those concerns. He noted prior Appeal Board decisions to the effect that failure to file and pay taxes when due impugns an applicant’s judgment and reliability. See, e.g., ISCR Case No. 14-04437 at 3 (App. Bd. Apr. 15, 2016), which the Judge cited. He stated that Applicant’s “varying explanations for failing to file his state taxes did not enhance his position.” Decision at 7. He concluded that Applicant knew of his duty to file and pay his taxes, which detracted from his effort to explain his conduct. The Judge also observed that Applicant had waited for several years to file his returns, which detracted from Applicant’s favorable evidence.

DISCUSSION

Applicant contends that the Judge failed properly to apply the mitigating conditions and the whole-person factors. He cites to his clean disciplinary record, his years of holding a security clearance without incident, his community involvement, etc. He argues that the Judge failed to consider this evidence, applying instead a “strict liability” approach to Applicant’s tax problem.

A Judge is required to consider the entirety of the record evidence, which is the essence of the whole-person concept. See, e.g., ISCR Case No. 14-06653 at 3 (App. Bd. Nov. 18, 2016). A Judge is presumed to have considered all of the evidence in the record. See, e.g., ISCR Case No. 13-00502 at 3 (App. Bd. Mar. 7, 2017). A Judge is not required to discuss every piece of evidence, however, which would be nearly impossible. See, e.g., ISCR Case No. 14-05396 at 4 (App. Bd. Jan. 10, 2017). Our reading of the case file provides no reason to conclude that the Judge failed in his responsibility to consider the entirety of the evidence. The Judge cited to favorable evidence, such as Applicant’s family circumstances, his education, and his years of working for a Defense contractor. However, as he noted in the Analysis portion of the Decision, failure to file tax returns and pay taxes when due suggest that an applicant has difficulty complying with rules and regulations. This, in turn, raises a reasonable concern that the applicant may decline to follow other rules, such as those governing access to classified information. In a DOHA proceeding, it is the applicant who must bear the burden of persuasion as to mitigation of the concerns raised by the SOR and evidenced in the file. Directive ¶ E3.1.15. Given Applicant’s inconsistent explanations for his security-significant conduct, we find no reason to disturb the Judge’s conclusion that Applicant had failed to meet his burden. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record or that he failed properly to weigh that evidence. ISCR Case No. 13- 00502 at 3, supra. We find no reason to conclude that the Judge failed properly to evaluate Applicant’s case for mitigation in light of the whole-person concept. 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.”

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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board