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ISCR Case 17-00852.h1 — CASE

ISCR Case 17-00852.h1denied

Case Headnote

ISCR Case No. 17-00852.h1

deniedJan 31, 2018· Hon. LeRoy F. Foreman· hearing

Summary

A 60-year-old defense contractor was denied a security clearance under Guideline F (Financial Considerations) due to a history of unfiled tax returns. The applicant admitted to failing to file federal income tax returns for both 2013 and 2014, and a state income tax return for 2014. These failures were cited as disqualifying conditions under Adjudicative Guidelines Paragraphs 19(c) and 19(f).

Despite admitting to the allegations, the applicant did not provide any evidence of seeking financial counseling or establishing payment arrangements with the relevant tax authorities. The absence of such mitigating actions, combined with the admitted financial irresponsibility, raised significant concerns regarding the applicant's reliability and trustworthiness.

Ultimately, the lack of demonstrated efforts to resolve the outstanding tax issues and address the underlying financial conduct led to the denial of the security clearance.

Why the Applicant Was Denied

The applicant admitted to failing to file federal and state income tax returns as required.
No evidence was provided to demonstrate financial counseling or arrangements with tax authorities.
The applicant's financial irresponsibility raised concerns about his reliability and trustworthiness.

Conditions Referenced

Disqualifying

AG ¶ 19(c)appliedHistory of Not Meeting Financial Obligations
AG ¶ 19(f)appliedFailure to File or Fraudulently Filing Annual Federal, State, or Local Income Tax Returns

Key Rule Quoted

“Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines.”

Procedural Posture

SOR issuedApr 24, 2017
Answer filedMay 25, 2017Requested decision on the record without a hearing.
Hearing held—No hearing; decision made on the record.
Decision dateJan 31, 2018

Cite For

Failure to File Tax Returns Under Guideline F
Lack of Evidence for Mitigating Conditions
Importance of Demonstrating Financial Responsibility for Security Clearance Eligibility

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 that the applicant failed to file federal income tax returns for 2013 and 2014, as well as a state income tax return for 2014, which raised significant financial concerns under Guideline F. The applicant's admissions and lack of evidence to mitigate these concerns led to a decision against the applicant, resulting in the denial of his security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	failed to file federal income tax returns as required for 2013 and 2014	Against Applicant	Tax Filing Failure	Admitted	(c) a history of not meeting financial obligations (f) failure to file / fraudulent filing of tax returns or unpaid tax	—	—
1.b	failed to file a state income tax return for 2014 as required	Against Applicant	Tax Filing Failure	Admitted	(c) a history of not meeting financial obligations (f) failure to file / fraudulent filing of tax returns or unpaid tax	—	—

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: ) ) [Redacted] ) ISCR Case No. 17-00852 ) Applicant for Security Clearance )

For Government: Gatha Manns, Esq., Department Counsel For Applicant: Pro se

01/31/2018 ______________

STATEMENT OF CASE

______________

FOREMAN, LeRoy F., Administrative Judge:

This case involves security concerns raised under Guideline F (Financial Considerations). Eligibility for access to classified information is denied.

Statement of the Case

Applicant submitted a security clearance application (SCA) on December 18, 2014, seeking to continue a security clearance he has held since February 2004. On April 24, 2017, the Department of Defense (DOD) sent him a Statement of Reasons (SOR) alleging security concerns under Guideline F. The DOD acted under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by DOD on September 1, 2006.1 Applicant answered the SOR on May 25, 2017, and requested a decision on the record without a hearing. Department Counsel submitted the Government’s written case on July 20, 2017. On July 21, 2017, a complete copy of the file of relevant material (FORM) was sent to Applicant, who was given an opportunity to file objections and submit material to refute, extenuate, or mitigate the Government’s evidence. He received the FORM on August 8, 2017, and did not respond.2 The case was assigned to me on December 18, 2017

Findings of Fact3

In Applicant’s answer to the SOR, he admitted all the allegations. His admissions are incorporated in my findings of fact.

Applicant is a 60-year-old employee of a defense contractor. He married in May 1983 and has two adult children. He served as an enlisted sailor in the U.S. Navy from March 1976 to March 1980 and from August 1982 to August 2000, and he received honorable discharges for both periods of service. He worked for a private-sector company from February 2002 to March 2012 and for another defense contractor from March 2012 to March 2013. His SCA reflects that he was unemployed for about a month before being hired for his current job in March 2013.

When Applicant submitted his SCA, he disclosed that he did not file his federal income tax return for 2013 or pay the taxes due. He stated that he thought he filed an electronic return but it was not received by the Internal Revenue Service (IRS). He estimated that he owed about $2,000 in federal taxes, and he stated that he contacted the IRS to set up a payment system. In his answer to the SOR, he admitted that he did not filed his federal returns for 2013 and 2014 and his state return for 2014 because he was not financially stable at the time. He stated that he had contacted both federal and state tax authorities.

The SOR alleges that Applicant failed to file federal income tax returns as required for 2013 and 2014 (SOR ¶ 1.a) and failed to file a state income tax return for 2014 as required (SOR ¶ 1.b). No federal or state tax debts are alleged.

Applicant’s admissions are the only admissible evidence supporting the allegations in the SOR. Applicant has provided no documentary evidence of any contacts with federal and state tax authorities and no evidence that the past-due returns have been filed. The SOR does not allege and the admissible evidence does not establish that he owes any federal or state taxes.

POLICIES

“[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 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.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865 § 2.

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies these guidelines in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available and reliable information about the person, past and present, favorable and unfavorable.

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk that the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information.

Clearance decisions must be made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “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). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 15-01253 at 3 (App. Bd. Apr.20, 2016).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005).

An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01- 20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531.

ANALYSIS

Guideline F, Financial Considerations

The security concern under this guideline 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. . . .

This concern is broader than the possibility that a person might knowingly compromise classified information to raise money. It encompasses concerns about a person’s self-control, judgment, and other qualities essential to protecting classified information. A person who is financially irresponsible may also be irresponsible, unconcerned, or negligent in handling and safeguarding classified information. See ISCR Case No. 11-05365 at 3 (App. Bd. May 1, 2012).

Applicant’s admissions establish the following disqualifying conditions: AG ¶ 19(c) (“a history of not meeting financial obligations”) and AG ¶ 19(f) (“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”). The following mitigating conditions are potentially relevant:

AG ¶ 20(a): 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;

AG ¶ 20(b): 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;

AG ¶ 20(c): 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; and

AG ¶ 20(g): the individual has made arrangements with the appropriate tax authority to file or pay the amount owed and is in compliance with those arrangements.

None of the above mitigating conditions are established. Applicant has submitted no evidence of conditions that caused inability to file his tax returns as required. He has not disputed his obligation to file. He has not provided evidence of financial counseling or arrangements with tax authorities to file the returns.

WHOLE PERSON CONCEPT

Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. In applying the whole- person concept, an administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all relevant circumstances and applying the adjudicative factors in AG ¶ 2(d).4 Because Applicant requested a determination on the record without a hearing, I had no opportunity to evaluate his credibility and sincerity based on demeanor and no opportunity to question him about the allegations in the SOR. See ISCR Case No. 01-12350 at 3-4 (App. Bd. Jul. 23, 2003). After weighing the disqualifying and mitigating conditions under Guideline F, and evaluating all the evidence in the context of the whole person, I conclude Applicant has not mitigated the security concerns raised by his failures to file federal and state income tax returns as required.

FORMAL FINDINGS

I make the following formal findings on the allegations in the SOR:

Paragraph 1, Guideline F (Financial Considerations): AGAINST APPLICANT

Subparagraphs 1.a and 1.b: Against Applicant

CONCLUSION

I conclude that it is not clearly consistent with the national security interests of the United States to continue Applicant’s eligibility for access to classified information. Clearance is denied.

LeRoy F. Foreman Administrative Judge

FOOTNOTES

1 Security Executive Agent Directive 4 (SEAD 4), was issued on December 10, 2016, revising the 2006 adjudicative guidelines for all adjudicative decisions issued on or after June 8, 2017. The changes resulting from issuance of SEAD 4 did not affect my decision in this case. 2 The FORM includes a summary of a personal subject interview (PSI) conducted in August 2015 (FORM Item 4). The PSI was not authenticated as required by Directive ¶ E3.1.20. Department Counsel did not inform Applicant that he was entitled to comment on the accuracy of the PSI summary; make any corrections, additions, deletions or updates; or object to consideration of the PSI on the ground that it was not authenticated. Item 4 is not admissible, and I have not considered it in my decision.

3 Applicant’s personal information is extracted from his security clearance application (FORM Item 3) unless otherwise indicated by a parenthetical citation to the record. 4 The factors are: (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.