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ISCR Case 16-00517.a1 — CASE

ISCR Case 16-00517.a1unknown

Case Headnote

ISCR Case No. 16-00517.a1

Sep 8, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

This security clearance case, involving a retired military officer, centered on Guideline F (Financial Considerations) due to substantial tax debts and wage garnishment. The applicant's initial clearance was denied, leading to an appeal.

The appeal board remanded the case, instructing the judge to re-evaluate the applicant's situation under updated mitigating conditions, specifically Guideline 20(g). The board noted that while the judge's original decision did not incorporate these newer guidelines, this was not considered an error on his part, as they had been updated since his initial ruling.

The outcome of this remanded review is not specified, meaning a final determination on the applicant's security clearance has not yet been reached based on the provided facts.

Conditions Referenced

Mitigating

20(g)raisedMitigating Condition 20(g)The applicant contended that payments to the IRS through wage garnishment should qualify for this mitigating condition.

Key Rule Quoted

“Security clearance decisions must be based on current, not past, DoD policies and standards.”
— ISCR Case No. 00-0489 at 8 (App. Bd. Jan. 10, 2002)

Procedural Posture

SOR issuedMay 31, 2016
Answer filed—
Hearing heldJun 7, 2017
Decision dateSep 8, 2017Decision remanded for further consideration.

Cite For

Remand for Consideration of New Mitigating Conditions Regarding Tax Debts
Impact of Updated Guidelines on Financial Considerations
Importance of Adhering to Current Dod Policies in Security Clearance Decisions.

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

Remanded

The appeal involved an applicant who was denied a security clearance based on financial considerations under Guideline F. The applicant argued that the decision was arbitrary and that he was denied due process. The Board remanded the case for the Judge to consider the applicability of a new mitigating condition regarding tax compliance that was not in effect at the time of the original decision.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMichael H. Leonard — denied the clearance

Decided ona hearing

Guidelines belowGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantNot reached
Applicant argued that the Judge's adverse decision was arbitrary, capricious, or contrary to law.
Due-process / fairness — raised by the applicantNot reached
Applicant contended that he was denied due process.

Why the Board ruled this way

The Board remanded the case for the Judge to consider the applicability of a new mitigating condition that was not in effect at the time of the original decision. The Board found that the Judge's failure to address this condition was not an error on his part, but the decision did not adhere to current procedures mandated by the Directive.

Other

On remand, the judge must

The Judge is to give the parties an opportunity to address the potential applicability of Encl. 2, App. A ¶ 20(g) and issue a new Decision in accordance with the Directive.

Standard of review applied

No de-novo re-decisionProcedural compliance

Appeal Board panel

Michael Y. 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: We remand the case to the Judge for him to give the parties an opportunity to address the potential applicability of Encl. 2, App. A ¶ 20(g) and issue a new Decision in accordance with the Directive. Other issues raised by Applicant are not ripe for consideration. Adverse decision remanded. CASENO: 16-00517.a1 DATE: 09/08/2017 DATE: September 8, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-00517

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 May 31, 2016,1 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 June 7, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Michael H. Leonard denied Applicant’s request for a security clearance. Applicant appealed

FOOTNOTES

1 The copy of the SOR contained in the record is undated. We have derived this date from the cover letter to Applicant that accompanied the SOR. pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether Applicant was denied due process and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we remand the case to the Judge. The Judge’s Findings of Fact A retired career military officer, Applicant experienced underemployment from October 2014 to March 2016, when he began his current job as a Defense contractor. As a consequence, Applicant has experienced financial problems. He also stated that his difficulties were affected by commuting expenses, additional living expenses necessitated by a job relocation, increased utilities expenses, the costs of his child’s extracurricular activities, and trips for family health concerns. The SOR listed a number of delinquent debts, most of which the Judge resolved in Applicant’s favor. However, two debts–past-due taxes to the IRS and a wage garnishment–resulted in the adverse decision that Applicant is appealing. Applicant did not disclose his tax delinquencies on his security clearance application, although he did so during his subsequent clearance interview. While he stated that he was on a payment plan with the IRS to pay $12,000 in taxes for 2008, additional evidence showed that in fact he owed over $20,000 for 2009 through 2015. He also owes about $1,800 to his state tax authorities. Applicant is currently paying the IRS through a garnishment from his wife’s wages. If the payment is increased to a certain amount, then the IRS will consider establishing an installment plan agreement. Applicant and his wife earned a fairly high income during this period. Their current net monthly income is nearly $11,000 and their positive net remainder after expenses is nearly $900. Applicant now has more funds available to him because he is no longer budgeting for his child’s college expenses. The Judge’s Analysis The Judge noted that Applicant’s payments to the IRS have “not been purely voluntary,” insofar as they have been accomplished through garnishment. The Judge stated that Applicant’s circumstances suggest that he has a problem complying with governmental rules and regulations. The Judge cited to evidence of Applicant’s underemployment but also concluded that, on the whole, he had the means to pay his tax debt, given his and his wife’s combined incomes. He concluded that Applicant’s tax problems create doubt about his trustworthiness and good judgment. Discussion Applicant notes that the Decision was issued one day before the effective date of the new Adjudicative Guidelines promulgated by the Federal Government. He states that the Judge should have considered these updated Guidelines in analyzing his case for mitigation, specifically, Directive, Encl. 2, App. A ¶ 20(g) (“[T]he individual has made arrangements with the appropriate tax authority to . . . pay the amount owed and is in compliance with those arrangements.” He contends that payments to the IRS through garnishment of his wife’s wages are sufficient to raise the applicability of this mitigating condition. We note Applicant’s testimony that he is seeking an installment plan with the IRS but so far has not been able to reach an agreement as to the amount. In the meantime, the garnishment action remains in effect. The Judge found that, were the garnished amount to be increased from its current level to $241 per pay period, the IRS would then consider entering into an installment plan. Decision at 5. Under the facts of this case, a similarly situated applicant might have raised the applicability of 20(g) at the hearing as part of his or her case in mitigation. Given that mitigating condition 20(g) was not in force at the time the Judge completed his Decision, his failure to have addressed it is not surprising and cannot plausibly be attributed to error on his part. However, through no fault of the Judge’s own, the Decision as it stands does not adhere to the procedures currently mandated by the Directive. See Directive ¶ E3.1.32.2. See also ISCR Case No. 00-0489 at 8 (App. Bd. Jan. 10, 2002) (Security clearance decisions must be based on current, not past, DoD policies and standards). Accordingly, we remand the case to the Judge for him to give the parties an opportunity to address the potential applicability of this mitigating condition and issue a new Decision in accordance with the Directive. Other issues raised by Applicant are not ripe for consideration. Order The Decision is REMANDED. Signed: Michael Y. Ra’anan Michael Y. 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