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ISCR Case 16-03416.h1 — CASE

ISCR Case 16-03416.h1denied

Case Headnote

ISCR Case No. 16-03416.h1

deniedOct 11, 2017· Hon. Robert Robinson Gales· hearing

Summary

A 39-year-old defense contractor employee was denied a security clearance due to financial considerations under Guideline F. The applicant faced allegations of multiple delinquent accounts and a failure to file her 2015 federal income tax return.

Specifically, the applicant had an unresolved residential lease debt of $4,538, which was placed for collection. She also had an unresolved state tax lien from July 2012 for $1,934. While she stated a financial plan was in place for both, no resolution or evidence of payments was provided. Additionally, the applicant failed to timely file her 2015 federal income tax return, despite receiving an extension. Although she submitted an unsigned, undated self-prepared Form 1040 indicating a refund due, this issue was resolved.

The denial was based on the applicant's admission of approximately $11,498 in unresolved delinquent accounts and her failure to provide evidence of a financial plan or payments. The untimely filing of her 2015 federal income tax return further contributed to the security concerns.

Why the Applicant Was Denied

The applicant admitted to multiple delinquent accounts totaling approximately $11,498, which she failed to resolve.
She did not provide evidence of a financial plan or any payments made towards her debts.
The applicant failed to timely file her 2015 federal income tax return, which raised further concerns.

Conditions Referenced

Disqualifying

AG ¶ 19(a)raisedInability to Satisfy Debts
AG ¶ 19(b)raisedUnwillingness to Satisfy Debts
AG ¶ 19(c)raisedHistory of Not Meeting Financial Obligations
AG ¶ 19(f)raisedFailure to File or Fraudulently Filing Income Tax Returns

Key Rule Quoted

“Eligibility for a security clearance is denied.”

Procedural Posture

SOR issuedDec 9, 2016
Answer filedJan 5, 2017Applicant elected to have the case decided on the written record.
Hearing held—No hearing was held.
Decision dateOct 11, 2017

Cite For

Failure to Mitigate Financial Considerations Under Guideline F
Impact of Delinquent Accounts on Security Clearance Eligibility
Importance of Providing Evidence of Financial Responsibility in Clearance Cases

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

SEAD-4 Guideline F · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on multiple financial allegations, indicating a significant inability to satisfy debts and a history of not meeting financial obligations. The applicant's failure to timely file her 2015 federal income tax return was also noted, although one allegation regarding a tax return was resolved in her favor.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	This is a residential lease with an unpaid balance of $4,538 that was placed for collection. In her Answer to the SOR, Applicant admitted that the account remains delinquent, but added her comment that “a financial plan is in place.” The account has not been resolved. $4,538	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (b) unwillingness to satisfy debts regardless of ability (c) a history of not meeting financial obligations	—	—
1.l	Applicant failed to timely file her federal income tax return for the tax year 2015. As noted above, Applicant had received an extension from the IRS with respect to filing her 2015 income tax return, but acknowledged that she had missed the filing deadline. Attached to her Answer to the SOR, Applicant submitted an unsigned and undated copy of a self-prepared Form 1040, U.S. Individual Income Tax Return (Form 1040) for the tax year 2015. That form indicates she is due a refund of $1,137. The issue has been resolved.	For Applicant	Tax Filing Failure	Admitted	—	—	—
1.m	This is a state tax lien in the amount of $1,934 that was filed in July 2012. In her Answer to the SOR, Applicant admitted that the lien remains unresolved, but added her comment that “a financial plan is in place.” The lien has not been resolved. $1,934	Against Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (b) unwillingness to satisfy debts regardless of ability (c) a history of not meeting financial obligations	—	—

Descriptive standardized rendering of a decided public case (Guideline F). The verbatim source decision is shown in full below.

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

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) --- ) ISCR Case No. 16-03416 ) Applicant for Security Clearance )

For Government: Rhett Petcher, Esquire, Department Counsel For Applicant: Pro se

10/11/2017 ______________

STATEMENT OF CASE

______________

GALES, Robert Robinson, Administrative Judge:

Applicant failed to mitigate the security concerns regarding financial considerations. Eligibility for a security clearance is denied.

Statement of the Case

On November 3, 2015, Applicant applied for a security clearance and submitted an Electronic Questionnaire for Investigations Processing (e-QIP) version of a Security Clearance Application.1 On December 9, 2016, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued a Statement of Reasons (SOR) to her, under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended and modified; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended and modified (Directive); and the Adjudicative Guidelines for Determining Eligibility For Access to Classified Information (December 29, 2005) applicable to all adjudications and other determinations made under the Directive, effective September 1, 2006.2 The SOR alleged security concerns under Guideline F (Financial Considerations), and detailed reasons why the DOD adjudicators were unable to find that it is clearly consistent with the interests of national security to grant or continue a security clearance for Applicant. The SOR recommended referral to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked.

It is unclear when Applicant received the SOR as there is no receipt in the case file. In a sworn statement, dated January 5, 2017, Applicant responded to the SOR and elected to have her case decided on the written record in lieu of a hearing. A complete copy of the Government’s file of relevant material (FORM) was mailed to Applicant by the Defense Office of Hearings and Appeals (DOHA) on January 30, 2017, and she was afforded an opportunity, within a period of 30 days after receipt of the FORM, to file objections and submit material in refutation, extenuation, or mitigation. In addition to the FORM, Applicant was furnished a copy of the Directive as well as the previous Adjudicative Guidelines applicable to his case. Applicant received the FORM on February 3, 2017. Applicant’s response was due on March 5, 2017. As of October 1, 2017, Applicant had not submitted any response to the FORM. The case was assigned to me on October 1, 2017.

FINDINGS OF FACT

In her Answer to the SOR, Applicant admitted with comments nearly all of the factual allegations pertaining to financial considerations (¶¶ 1.a. through 1.n.) of the SOR, although she both admitted part, and denied part, of one such allegation (¶ 1.l.). Applicant’s admissions and comments are incorporated herein as findings of fact. After a complete and thorough review of the evidence in the record, and upon due consideration of same, I make the following additional findings of fact:

Applicant is a 39-year-old employee of a defense contractor. She has served as a parttime explosive expert since September 2015. She has also been a fulltime customer service representative with another company since August 2015. She previously worked fulltime or parttime for a number of employers, as a customer service representative, quality assurance specialist, and cashier. She is a 1996 high school graduate. Applicant has never served in the U.S. military. Applicant stated that she was granted a secret security clearance, but she failed to indicate when that action took place. Applicant was married in 2002 and divorced in 2005. She married again in 2006, was separated from April 2012 until January 2014, but reconciled in January 2014. She has a daughter, born in 2008. Financial Considerations3

Applicant was fired on two occasions by employers for different reasons, neither of which is alleged in the SOR,4 and those incidents resulted in periods of unemployment. She was unemployed from May 2014 until December 2014 for poor job performance (during which she was supported by unemployment benefits, and there were no financial hardships); and from July 2015 until August 2015 for too many absences (during which she was supported by her husband, and there were some financial hardships). Applicant mentioned a period during which her husband was unemployed, but she failed to indicate when that occurred or what impact his status had on the family finances. It appears that Applicant’s finances became an issue as far back as 1997 when there was a dispute regarding a student loan, and again commencing in 2010 when some other accounts started to become delinquent. The first of two state tax liens was filed in 2011. At some point after her daughter was born in 2008, and her husband lost his job, finances were tight, and Applicant was unable to pay her rent. In her November 2015 e-QIP, Applicant candidly listed a number of delinquent accounts. In December 2015, when she was interviewed by an investigator from the U.S. Office of Personnel Management (OPM), she expressed surprise that some of the accounts she was questioned about were delinquent, and claimed to be unaware of other accounts. She indicated that she had received an extension from the Internal Revenue Service (IRS) with respect to filing her 2015 income tax return, but acknowledged that she had missed the filing deadline.5 Applicant stated that she had previously had repayment plans for several accounts in place, but that she had been unable to keep up with her payments under those plans. She indicated that she hoped to pay off the accounts in the next three to six months, following December 2015, “by sending in one lump sum or by making a significant impact on each account.” She hoped her new job would enable her to obtain the funds to put together a budget so that she could create repayment plans. Applicant “wants to take care of [her] accounts,” and she hoped her financial status would get better, because she was addressing the accounts that she could.6 She acknowledged that she had never received credit counseling.

In her Answer to the SOR, Applicant stated for all of the delinquent accounts, “a financial plan is in place.” She failed to submit documentation to support her contentions that: creditors or collection agents had been contacted; repayment plans had been established; payments had been made; or accounts had been resolved. There are no copies of account statements, cancelled checks, bank statements or registers, receipts, or letters from creditors or collection agents reflecting any positive activity – documented proof to substantiate compliance with repayment arrangements – with respect to the accounts.

In addition to the one allegation regarding Applicant’s failure to timely file her 2015 federal income tax return, the SOR identified 13 purportedly delinquent accounts that had been placed for collection, charged off, or filed as a lien, as generally reflected by Applicant’s 2015 or 2016 credit reports. Those debts, totaling approximately $11,498, their current status, according to the credit reports, other evidence submitted by the Government and Applicant, are described as follows:

(SOR ¶ 1.a.): This is a residential lease with an unpaid balance of $4,538 that was placed for collection. In her Answer to the SOR, Applicant admitted that the account remains delinquent, but added her comment that “a financial plan is in place.” The account has not been resolved.

(SOR ¶ 1.b.): This is a government overpayment with an unpaid balance of $2,197 that was placed for collection. In her Answer to the SOR, Applicant admitted that the account remains delinquent, but added her comment that “a financial plan is in place.” The account has not been resolved.

(SOR ¶¶ 1.c., and 1.f. through 1.k.): These are all medical debts with remaining unpaid balances of $444, $287, $268, $265, $72, $30, and $20 that were placed for collection. In her Answer to the SOR, Applicant admitted that the accounts remain delinquent, but added her comment that “a financial plan is in place.” The accounts have not been resolved.

(SOR ¶ 1.d.): This is a gas utility account with an unpaid balance of $442 that was placed for collection. In her Answer to the SOR, Applicant admitted that the account remains delinquent, but added her comment that “a financial plan is in place.” The account has not been resolved.

(SOR ¶ 1.e.): This is an unspecified type of bank account with an unpaid balance of $413 that was placed for collection and charged off. In her Answer to the SOR, Applicant admitted that the account remains delinquent, but added her comment that “a financial plan is in place.” The account has not been resolved.

(SOR ¶ 1.m.): This is a state tax lien in the amount of $1,934 that was filed in July 2012. In her Answer to the SOR, Applicant admitted that the lien remains unresolved, but added her comment that “a financial plan is in place.” The lien has not been resolved.

(SOR ¶ 1.n.): This is a cable account with an unpaid balance of $588 that was placed for collection. In her Answer to the SOR, Applicant admitted that the account remains delinquent, but added her comment that “a financial plan is in place.” The account has not been resolved.

(SOR ¶ 1.l.): Applicant failed to timely file her federal income tax return for the tax year 2015. As noted above, Applicant had received an extension from the IRS with respect to filing her 2015 income tax return, but acknowledged that she had missed the filing deadline. Attached to her Answer to the SOR, Applicant submitted an unsigned and undated copy of a self-prepared Form 1040, U.S. Individual Income Tax Return (Form 1040) for the tax year 2015. That form indicates she is due a refund of $1,137. The issue has been resolved.

It is not known what Applicant’s financial resources may be because she did not submit a Personal Financial Statement to reflect her net monthly income; monthly expenses; and any monthly remainder that might be available for discretionary spending or savings. Her Form 1040 reflects an adjusted gross income for 2015 of $36,852. There is no evidence of a budget. There is no evidence of any financial counseling. Applicant offered no evidence to indicate that her financial situation is now under control.

POLICIES

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no one has a ‘right’ to a security clearance.”7 As Commander in Chief, the President has the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information. The President has authorized the Secretary of Defense or his designee to grant an applicant eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.”8

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the guidelines in SEAD 4. In addition to brief introductory explanations for each guideline, the guidelines list potentially disqualifying conditions and mitigating conditions, which are used in evaluating an applicant’s eligibility for access to classified information.

An administrative judge need not view the guidelines as inflexible, ironclad rules of law. Instead, acknowledging the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. The entire process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a meaningful decision.

In the decision-making process, facts must be established by “substantial evidence.”9 The Government initially has the burden of producing evidence to establish a potentially disqualifying condition under the Directive, and has the burden of establishing controverted facts alleged in the SOR. Once the Government has produced substantial evidence of a disqualifying condition, under Directive ¶ E3.1.15, the applicant has the burden of persuasion to present evidence in refutation, explanation, extenuation or mitigation, sufficient to overcome the doubts raised by the Government’s case. The burden of disproving a mitigating condition never shifts to the Government.10

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours as well. It is because of this special relationship that the Government must be able to repose a high degree of trust and confidence in those individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. Furthermore, “security clearance determinations should err, if they must, on the side of denials.”11 Clearance decisions must be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.”12 Thus, nothing in this decision should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination as to Applicant’s allegiance, loyalty, or patriotism. It is merely an indication the Applicant has or has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance. In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

ANALYSIS

Guideline F, Financial Considerations

The security concern relating to the guideline for Financial Considerations is set out in AG ¶ 18:

Failure to live within one's means, satisfy debts, and meet financial obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual's reliability, trustworthiness, and ability to protect classified or sensitive information. Financial distress can also be caused or exacerbated by, and thus can be a possible indicator of, other issues of personnel security concern such as excessive gambling, mental health conditions, substance misuse, or alcohol abuse or dependence. An individual who is financially overextended is at greater risk of having to engage in illegal or otherwise questionable acts to generate funds. Affluence that cannot be explained by known sources of income is also a security concern insofar as it may result from criminal activity, including espionage.

The guideline notes several conditions that could raise security concerns. Under AG ¶ 19(a), an “inability to satisfy debts” is potentially disqualifying. In addition, AG ¶ 19(b) may apply if there is an “unwillingness to satisfy debts regardless of the ability to do so.” Similarly, under AG ¶ 19(c), “a history of not meeting financial obligations” may raise concerns. In addition, AG ¶ 19(f) may apply for “failure to file or fraudulently filing annual Federal, state, or local income tax returns or failure to pay annual Federal, state, or local income tax as required.” Applicant’s credit reports reflect 13 delinquent accounts, including a state tax lien, and she has admitted that the accounts are still delinquent. She failed to timely file her federal income tax return for the tax year 2015. AG ¶¶ 19(a), 19(b), 19(c), and 19(f) apply.

The guideline also includes examples of conditions that could mitigate security concerns arising from financial difficulties. Under AG ¶ 20(a), the disqualifying condition may be mitigated where “the behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur and does not cast doubt on the individual's current reliability, trustworthiness, or good judgment.”13 Also, under AG ¶ 20(b), financial security concerns may be mitigated where “the conditions that resulted in the financial problem were largely beyond the person's control (e.g., loss of employment, a business downturn, unexpected medical emergency, a death, divorce or separation, clear victimization by predatory lending practices, or identity theft), and the individual acted responsibly under the circumstances.” Evidence that “the individual has received or is receiving financial counseling for the problem from a legitimate and credible source, such as a non-profit credit counseling service, and there are clear indications that the problem is being resolved or is under control” is potentially mitigating under AG ¶ 20(c). Similarly, AG ¶ 20(d) applies where the evidence shows “the individual initiated and is adhering to a good-faith effort to repay overdue creditors or otherwise resolve debts.”14 In addition, AG ¶ 20(e) may apply if “the individual has a reasonable basis to dispute the legitimacy of the past-due debt which is the cause of the problem and provides documented proof to substantiate the basis of the dispute or provides evidence of actions to resolve the issue.” Under AG ¶ 20(g), it is potentially mitigating if “the individual has made arrangements with the appropriate tax authority to file or pay the amount owed and is in compliance with those arrangements.”

AG ¶ 20(b) minimally applies, but none of the remaining mitigating conditions apply. The nature, frequency, and recency of Applicant’s continuing financial difficulties since 2010 or before make it difficult to conclude that it occurred “so long ago” or “was so infrequent,” or that it is “unlikely to recur.” Applicant noted some unspecified financial hardships during her most recent period of unemployment, as well as a period of her husband’s unemployment. It appears, however, that those issues occurred after she started experiencing financial difficulties.

Rather than addressing the 13 delinquent accounts, over a substantial period of time, Applicant simply took no action to resolve them, including some accounts with very modest delinquent balance of $20, $30, and $72. Aside from Applicant’s verbal and written comments regarding her debts, there is little documentary evidence to support her claimed good-faith efforts to address those debts. Of the 13 debts identified in the SOR that had been placed for collection, charged off, or filed as liens, Applicant failed to submit documentation to support her contentions that: creditors or collection agents had been contacted; repayment plans had been established; payments had been made; or accounts had been resolved. There are no copies of account statements, cancelled checks, bank statements or registers, receipts, or letters from creditors or collection agents reflecting any positive activity – documented proof to substantiate compliance with repayment arrangements – with respect to the accounts.

Applicant has been credited with filing her federal income tax return for the tax year 2015. It remains unclear as to why she would choose to delay obtaining the refund due her with respect to her 2015 taxes when she has so many delinquent accounts. Also, Applicant’s observation that, within six months after December 2015, she will be in a better position to address her debts, is simply a hope for financial improvement, not a strategy for a financial plan.

Clearance decisions are aimed at evaluating an applicant’s judgment, reliability, and trustworthiness. They are not a debt-collection procedure. The guidelines do not require an applicant to establish resolution of each and every debt alleged in the SOR. An applicant needs only to establish a plan to resolve financial problems and take significant actions to implement the plan. There is no requirement that an applicant immediately resolve or make payments on all delinquent debts simultaneously, nor is there a requirement that the debts alleged in an SOR be paid first. Rather, a reasonable plan and concomitant conduct in furtherance of the plan may provide for the payment of such debts one at a time. Mere promises to pay debts in the future, without further confirmed action, are insufficient.

There is no evidence of a good-faith effort to contact the creditors to resolve the accounts.15 There is little evidence that the conditions that may have resulted in the financial issues were largely beyond Applicant's control. There is no evidence of financial counseling, a budget, or any disputes. Applicant offered no evidence to indicate that her financial situation is now under control. Equally as important, there is no evidence that Applicant acted responsibly under the circumstances, and that failure to do so continues to cast doubt on her current reliability, trustworthiness, and good judgment.16

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all the circumstances. The administrative judge should consider the nine adjudicative process factors listed at SEAD 4, App. A, ¶ 2(d):

(1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.

Under SEAD 4, App. A, ¶ 2(c), the ultimate determination of whether to grant a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. Moreover, I have evaluated the various aspects of this case in light of the totality of the record evidence and have not merely performed a piecemeal analysis.17

There is some evidence mitigating Applicant’s conduct. There is no evidence of misuse of information technology systems, or mishandling protected information. Applicant has been employed fulltime by two employers since September 2015.

The disqualifying evidence under the whole-person concept is simply more substantial. There are 13 delinquent accounts alleged in the SOR with a combined unpaid balance of $11,498. Although Applicant was questioned about the delinquent accounts by the OPM investigator in December 2015, and she promised to resolve them within six months, she apparently made no efforts since that time to address any of those delinquent accounts, including ones with the delinquent balances of $20, $30, and $72. Her unsubstantiated comments that “a financial plan is in place” for the accounts are simply insufficient to prove that she made any of those good-faith efforts. There is no evidence that she disputed any of the accounts.

As noted above, Applicant was fired by employers for a variety of reasons, none of which are alleged in the SOR. She had two state tax liens filed against her (only one was alleged in the SOR). Her lack of attention to, and lack of compliance with, the rules of her employers, the rules of the state, as well as the law regarding the timely filing of federal income tax returns, appear to be an unacceptable pattern of conduct. Considering the lack of evidence regarding her current finances, and the absence of character evidence regarding Applicant’s honesty, integrity, and trustworthiness, I am unable to reach a positive conclusion pertaining to Applicant’s eligibility for a security clearance.

The Appeal Board has addressed a key element in the whole-person analysis in financial cases stating:18

In evaluating Guideline F cases, the Board has previously noted that the concept of “meaningful track record” necessarily includes evidence of actual debt reduction through payment of debts. However, an applicant is not required, as a matter of law, to establish that he [or she] has paid off each and every debt listed in the SOR. All that is required is that an applicant demonstrate that he [or she] has “. . . established a plan to resolve his [or her] financial problems and taken significant actions to implement that plan.” The Judge can reasonably consider the entirety of an applicant’s financial situation and his [or her] actions in evaluating the extent to which that applicant’s plan for the reduction of his outstanding indebtedness is credible and realistic. See Directive ¶ E2.2(a) (“Available, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a determination.”) There is no requirement that a plan provide for payments on all outstanding debts simultaneously. Rather, a reasonable plan (and concomitant conduct) may provide for the payment of such debts one at a time. Likewise, there is no requirement that the first debts actually paid in furtherance of a reasonable debt plan be the ones listed in the SOR.

Applicant has demonstrated an extremely poor track record of debt reduction and elimination efforts, avoiding the debts in her name, and failing to fulfill her promises to take timely corrective actions. Overall, the evidence leaves me with substantial questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all of these reasons, I conclude Applicant has failed to mitigate the security concerns arising from her financial considerations. See SEAD 4, App. A, ¶¶ 2(d)(1) through AG 2(d)(9).

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline F: AGAINST APPLICANT

Subparagraphs 1.a. through 1.k.: Against Applicant Subparagraph 1.l.: For Applicant Subparagraphs 1.m. and 1.n.: Against Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the interests of national security to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied.

________________________ ROBERT ROBINSON GALES Administrative Judge

FOOTNOTES

1 Item 2 (e-QIP, dated November 3, 2015). 2 Effective June 8, 2017, by Directive 4 of the Security Executive Agent (SEAD 4), dated December 10, 2016, National Security Adjudicative Guidelines (AG) for all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position, were established to supersede all previously issued national security adjudicative criteria or guidelines. Accordingly, those guidelines previously implemented on September 1, 2006, under which this security clearance review case was initiated, no longer apply. In comparing the two versions, there is no substantial difference that might have a negative effect on Applicant in this case. 3 General source information pertaining to the financial accounts discussed below can be found in the following exhibits: Item 4 (Combined Experian, TransUnion, and Equifax Credit Report, dated November 21, 2015; Item 5 (Equifax Credit Report, dated October 28, 2016); Item 3 (Personal Subject Interview, dated December 21, 2015); Item 2, supra note 2; Item 1 (Answer to the SOR, dated January 5, 2017).

4 Unalleged conduct can be considered for certain purposes, as discussed by the DOHA Appeal Board. (Conduct not alleged in an SOR may be considered: (a) to assess an applicant's credibility; (b) to evaluate an applicant's evidence of extenuation, mitigation, or changed circumstances; (c) to consider whether an applicant has demonstrated successful rehabilitation; (d) to decide whether a particular provision of the Adjudicative Guidelines is applicable; or (e) to provide evidence for whole-person analysis under Directive § 6.3.). See ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006); (citing ISCR Case No. 02-07218 at 3 (App. Bd. Mar. 15, 2004); ISCR Case No. 00-0633 at 3 (App. Bd. Oct. 24, 2003)). See also ISCR Case No. 12-09719 at 3 (App. Bd. April 6, 2016) (citing ISCR Case No. 14-00151 at 3, n. 1 (App. Bd. Sept. 12, 2014); ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006)). One of Applicant’s state tax liens and her terminations by employers will be considered only for the five purposes listed above.

5 The legal requirement to file a federal income tax return is based upon certain conditions, including an individual’s gross income and other enumerated conditions. Once it is determined that there is an obligation to so file, the following applies:

Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return, keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $25,000 ($100,000 in the case of a corporation), or imprisoned not more than 1 year, or both, together with the costs of prosecution. In the case of any person with respect to whom there is a failure to pay any estimated tax, this section shall not apply to such person with respect to such failure if there is no addition to tax under section 6654 or 6655 with respect to such failure. In the case of a willful violation of any provision of section 6050I, the first sentence of this section shall be applied by substituting "felony" for "misdemeanor" and "5 years" for "1 year."

26 U.S.C. § 7203, Willful failure to file return, supply information, or pay tax. 6 It should be noted that the Appeal Board has indicated that promises to pay off delinquent debts in the future are not a substitute for a track record of paying debts in a timely manner and otherwise acting in a financially responsible manner. ISCR Case No. 07-13041 at 4 (App. Bd. Sep. 19, 2008) (citing ISCR Case No. 99-0012 at 3 (App. Bd. Dec. 1, 1999)). 7 Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 8 Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended and modified.

9 “Substantial evidence [is] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all contrary evidence in the record.” ISCR Case No. 04-11463 at 2 (App. Bd. Aug. 4, 2006) (citing Directive ¶ E3.1.32.1). “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994).

10 See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005).

11 Egan, 484 U.S. at 531. 12 See Exec. Or. 10865 § 7. 13 A debt that became delinquent several years ago is still considered recent because “an applicant’s ongoing, unpaid debts evidence a continuing course of conduct and, therefore, can be viewed as recent for purposes of the Guideline F mitigating conditions.” ISCR Case No. 15-06532 at 3 (App. Bd. Feb. 16, 2017) (citing ISCR Case No. 15- 01690 at 2 (App. Bd. Sep. 13, 2016)).

14 The Appeal Board has previously explained what constitutes a good-faith effort to repay overdue creditors or otherwise resolve debts:

In order to qualify for application of [the “good-faith” mitigating condition], an applicant must present evidence showing either a good-faith effort to repay overdue creditors or some other good-faith action aimed at resolving the applicant’s debts. The Directive does not define the term ‘good-faith.’ However, the Board has indicated that the concept of good-faith ‘requires a showing that a person acts in a way that shows reasonableness, prudence, honesty, and adherence to duty or obligation.’ Accordingly, an applicant must do more than merely show that he or she relied on a legally available option (such as bankruptcy [or statute of limitations]) in order to claim the benefit of [the “good-faith” mitigating condition].

(internal citation and footnote omitted) ISCR Case No. 02-30304 at 3 (App. Bd. Apr. 20, 2004) (quoting ISCR Case No. 99-9020 at 5-6 (App. Bd. June 4, 2001)). 15 “Even if Applicant’s financial difficulties initially arose, in whole or in part, due to circumstances outside his [or her] control, the Judge could still consider whether Applicant has since acted in a reasonable manner when dealing with those financial difficulties.” ISCR Case No. 05-11366 at 4 n.9 (App. Bd. Jan. 12, 2007) (citing ISCR Case No. 99- 0462 at 4 (App. Bd. May 25, 2000); ISCR Case No. 99-0012 at 4 (App. Bd. Dec. 1, 1999); ISCR Case No. 03-13096 at 4 (App. Bd. Nov. 29, 2005)). A component is whether he or she maintained contact with creditors and attempted to negotiate partial payments to keep debts current.

16 See ISCR Case No. 09-08533 at 3-4 (App. Bd. Oct. 6, 2010). 17 See U.S. v. Bottone, 365 F.2d 389, 392 (2d Cir. 1966); See also ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). 18 ISCR Case No. 07-06482 at 2-3 (App. Bd. May 21, 2008) (internal citations omitted).