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ISCR Case 15-02554.h1 — CASE

ISCR Case 15-02554.h1denied

Case Headnote

ISCR Case No. 15-02554.h1

deniedMay 24, 2017· Hon. Robert E. Coacher· hearing

Summary

A 52-year-old defense contractor was denied a security clearance under Guideline F (Financial Considerations) due to unresolved financial issues. The Statement of Reasons cited two primary allegations: the applicant's failure to file a 2009 federal income tax return and a delinquent, charged-off account.

Specifically, the applicant had not filed his 2009 federal income tax return, and this issue remained unresolved at the time of the decision. Additionally, the applicant had a charged-off home equity loan totaling approximately $105,000, for which no documentation was provided to demonstrate its satisfaction.

The judge determined that the applicant failed to provide sufficient evidence to mitigate these financial concerns. There was no documentation of financial counseling or a current financial status, leading to the denial of the security clearance.

Why the Applicant Was Denied

The applicant failed to file his 2009 federal income tax return, which remains unresolved.
The applicant has a charged-off home equity loan of approximately $105,000, with no documentation provided to support its satisfaction.
The applicant did not provide evidence of financial counseling or a current financial status.

Conditions Referenced

Disqualifying

F.1.araisedInability or Unwillingness to Satisfy Debts
F.1.craisedA History of Not Meeting Financial Obligations
F.1.graisedFailure to File Federal Income Tax Returns as Required

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedSep 28, 2015
Answer filedMar 31, 2016Applicant elected to have the case decided on the written record.
Hearing held—No hearing; decision based on written record.
Decision dateMay 24, 2017

Cite For

Failure to Mitigate Financial Considerations Under Guideline F
Importance of Providing Evidence to Support Claims of Financial Resolution
Impact of Unresolved Tax Issues on 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 mitigate financial concerns under Guideline F, specifically regarding the failure to file a 2009 federal tax return and a charged-off home equity loan. As a result, the applicant's eligibility for access to classified information was denied.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	Applicant failed to file his 2009 federal income tax return	Against Applicant	Tax Filing Failure	Denied	(a) inability to satisfy debts (c) a history of not meeting financial obligations (g) unexplained affluence	—	—
1.b	Applicant owes on a delinquent charged-off account $105,000	Against Applicant	Unspecified Financial	Denied	(a) inability to satisfy debts (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. 15-02554 ) ) Applicant for Security Clearance )

For Government: Aubrey M. De Angelis, Esq., Department Counsel For Applicant: Pro se

05/24/2017 ______________

STATEMENT OF CASE

______________

COACHER, Robert E., Administrative Judge:

Applicant has not mitigated the financial considerations security concern. Eligibility for access to classified information is denied.

Statement of the Case

On September 28, 2015, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline F, financial considerations. DOD CAF acted under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG), effective within the DOD on September 1, 2006.

Applicant answered the SOR on March 31, 2016, and elected to have his case decided on the written record in lieu of a hearing. Department Counsel submitted the Government’s File of Relevant Material (FORM) on June 13, 2016. The evidence included in the FORM is identified as Items 4-8 (Items 1-3 contain pleadings and transmittal information). The FORM was mailed to Applicant who received it on June 20, 2016. Applicant was given an opportunity to file objections and submit material in refutation, extenuation, or mitigation. He failed to object to the Government’s evidence or submit any evidence himself. The case was assigned to me on April 11, 2017.

FINDINGS OF FACT

In Applicant’s answer to the SOR, he offered explanations to the allegations, but failed to specifically admit or deny them. His answers will be construed as denials. After a careful review of the pleadings and evidence, I make the following findings of fact.

Applicant is 52 years old. He is divorced and has one child, for whom he pays $500 monthly child support. He has worked for a defense contractor since April 2007. He served in the Army from 1985 to 1993 and was honorably discharged.1

The SOR alleges Applicant failed to file his 2009 federal income tax return and that he owes on a delinquent charged-off account.2

In his January 2013 statement to a defense investigator and in his SOR answer, Applicant admitted not filing his 2009 federal tax return. At the time, he was going through his divorce and was led to believe by his ex-wife that she would file a joint return for them. She filed a separate return and Applicant never filed his own return. Applicant stated he had contacted the IRS and was working to resolve this issue with them. He did not provide any documentation to support his assertions. Applicant’s tax issue is still unresolved.3

Credit reports from December 2012, March 2015, and May 2016 support SOR ¶ 1.a. They show Applicant having a charged-off home equity loan in the amount of approximately $105,000. The loan was opened in 2007, the last payment was November 2009, and the date of the first major delinquency was 2011. Applicant claims this loan was satisfied when the property securing it was foreclosed in 2011. He believes the sale amount was enough to satisfy the mortgage and the home equity loan. He did not provide supporting documentation. This debt remains unresolved.4

Applicant did not provide any information about his current financial status or a budget. There is no evidence that he sought financial counseling.5

POLICIES

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

These guidelines are not inflexible rules of law. Instead, recognizing 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. According to AG ¶ 2(c), 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 decision.

The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel, and has the ultimate burden of persuasion to obtain a favorable security decision.”

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. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk that an 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.

Section 7 of Executive Order 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline F, Financial Considerations

AG ¶ 18 expresses the security concern for financial considerations:

Failure or inability 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 information. An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds.

The guideline notes several conditions that could raise security concerns. I have considered all of them under AG ¶ 19 and the following potentially apply:

(a) inability or unwillingness to satisfy debts;

(g) failure to file Federal . . . income tax returns as required.

Applicant failed to file his 2009 federal tax return and his home equity loan was charged off. I find all the disqualifying conditions are raised.

The guideline also includes conditions that could mitigate security concerns arising from financial difficulties. I have considered all of the mitigating conditions under AG ¶ 20 and the following potentially apply:

(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;

(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, or a death, divorce or separation), and the individual acted responsibly under the circumstances;

(c) the person has received or is receiving counseling for the problem and/or there are clear indications that the problem is being resolved or is under control;

(d) the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts; and (e) the individual has a reasonable basis to dispute the legitimacy of the past-due debts 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.

Applicant failed to provide documentation that he filed his 2009 federal tax return. There is no documentation to support satisfaction of his home equity loan. He did not provide sufficient evidence to show that his financial problems are unlikely to recur. AG ¶ 20(a) does not apply. While divorce and his wife’s lack of cooperation could be considered conditions beyond his control, Applicant has had many years to resolve this tax issue, but failed to present evidence that he has done so. AG ¶ 20(b) does not apply. Applicant presented no evidence of financial counseling. He failed to document payment of the home equity loan or the filing of his federal tax return. I find AG ¶¶ 20(c), 20(d), and 20(e) do not apply.

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 AG ¶ 2(a):

(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 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 guideline and the whole-person concept.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Applicant has not shown a track record of financial stability.

Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the security concerns arising under Guideline F, financial considerations.

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 – 1.b: Against Applicant

CONCLUSION

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

_____________________________ Robert E. Coacher Administrative Judge

FOOTNOTES

1 Items 1-2. 2 Item 1. 3 Items 3, 8. 4 Items 3, 5-8. 5 Items 3, 5-8.