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ISCR Case 15-03321.h1 — CASE

ISCR Case 15-03321.h1denied

Case Headnote

ISCR Case No. 15-03321.h1

deniedApr 26, 2017· Hon. Candace Le'i Garcia· hearing

Summary

A 42-year-old male applicant with prior military service was denied a security clearance under Guideline F (Financial Considerations) due to a history of failing to timely file federal and state income tax returns. Specifically, the applicant did not file federal returns for tax years 2010, 2011, and 2012 until November 20, 2015. Additionally, state income tax returns for tax years 2009 through 2014 remained unfiled as of January 17, 2016, the date of the Statement of Reasons.

The judge determined that the applicant did not provide sufficient evidence of circumstances beyond his control that prevented timely tax filings. Although the overdue federal returns were filed shortly before the hearing, this action was deemed insufficient to mitigate the security concerns.

The applicant's pattern of late filings raised doubts about his current reliability and trustworthiness, leading to the conclusion that he did not demonstrate adequate financial responsibility. Consequently, the security clearance was denied.

Why the Applicant Was Denied

The applicant failed to timely file federal income tax returns for 2010, 2011, and 2012, and state income tax returns for 2009 through 2014.
The applicant did not provide sufficient evidence of circumstances beyond his control that impaired his ability to file taxes on time.
The applicant's history of late filings raised doubts about his current reliability and trustworthiness.

Conditions Referenced

Disqualifying

F.19(g)raisedFailure to File Annual Federal, State, or Local Income Tax Returns as Required

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.”

Procedural Posture

SOR issuedJan 17, 2016
Answer filedMar 16, 2016
Hearing held—Decided on written record
Decision dateApr 26, 2017

Cite For

Failure to Timely File Tax Returns Under Guideline F
Insufficient Evidence of Financial Responsibility as a Basis for Denial
Impact of Financial 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 timely file his federal and state income tax returns for multiple years, which raised significant financial concerns under Guideline F. Ultimately, the applicant did not mitigate these concerns, leading to a denial of his security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	Applicant failed to timely file his federal income tax returns for tax years 2010, 2011, and 2012, as he had not done so until November 20, 2015.	Against Applicant	Tax Filing Failure	Admitted	(g) unexplained affluence	—	—
1.b	Applicant failed to file his state income tax returns for tax years 2009 through 2014, as he had not yet filed them as of January 17, 2016, the date of the SOR.	Against Applicant	Tax Filing Failure	Denied	(g) unexplained affluence	—	—

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. 15-03321 ) Applicant for Security Clearance )

For Government: Braden Murphy, Esq., Department Counsel For Applicant: Pro se

04/26/2017 ______________

STATEMENT OF CASE

______________

GARCIA, Candace Le’i, Administrative Judge:

Applicant did not mitigate the financial considerations security concerns. Eligibility for access to classified information is denied.

Statement of the Case

On January 17, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline F, financial considerations. The action was taken 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) implemented by the DOD on September 1, 2006.

Applicant responded to the SOR on March 16, 2016, and elected to have the case decided on the written record in lieu of a hearing. The Government’s written case was submitted on June 6, 2016. A complete copy of the file of relevant material (FORM) was provided to Applicant, who was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the security concerns. Applicant received the FORM on June 9, 2016. Applicant did not object to the Government’s evidence. The Government’s documents identified as Items 1 through 5 are admitted into evidence. Other than his Answer to the SOR, identified as Item 3, Applicant failed to submit any additional documentation. The case was assigned to me on April 7, 2017.

FINDINGS OF FACT

Applicant is 42 years old. He obtained his high-school diploma in 1993, attended community college from 1993 to 1996 but did not earn a degree, and received a certificate in 2003. He served on active duty in the U.S. military from April 2002 until he was honorably discharged in March 2009, with a deployment to Iraq from August 2007 to November 2008. He was granted a DOD security clearance when he served in the U.S. military. He worked for a prior federal contractor from April 2009 until December 2012, when he began his current job with a federal contractor. He was previously married from 2001 to 2010, and has a 16-year-old daughter.1

The SOR alleges Applicant’s failure to timely file, as required, his federal income tax returns for tax years 2010, 2011, and 2012, as he had not done so until November 20, 2015. It also alleges Applicant’s failure to file his state income tax returns for tax years 2009 through 2014, as he had not yet filed them as of January 17, 2016, the date of the SOR. In his March 2016 response to the SOR, Applicant admitted ¶ 1.a, and denied ¶ 1.b. He provided with his November 20, 2015 response to interrogatories, copies of his 2010, 2011, and 2012 federal income tax returns, which contain a file- stamp date of November 20, 2015, from an IRS office in Applicant’s resident state. He maintained that he timely filed his 2009, 2013, and 2014 state income tax returns. He provided with his response to the SOR, copies of his 2009 through 2014 state income tax returns, all of which contain a file-stamp date of March 2016 from a taxpayer service center also in his resident state. He stated in his adopted December 2014 interview with an authorized DOD investigator that he intended to file his future tax returns in a timely manner.2

In his August 2014 Questionnaire for Investigations Processing (SF 86) and adopted December 2014 interview, Applicant attributed his failure to timely file his 2012 federal and state tax returns to not getting them done before he went out of town, and then forgetting about them. He did not explain why he failed to timely file his 2010 and 2011 federal tax returns, and only filed them on the same date as his response to interrogatories, nor did he explain why he failed to timely file his 2009 through 2011, 2013, and 2014 state tax returns, and only filed them around the same time as his response to the SOR.3

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 to be 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, administrative judges apply the guidelines 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.”

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel.” The applicant 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 the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information.

Section 7 of EO 10865 provides that adverse 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

The security concern for financial considerations is set out in AG ¶ 18:

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 under AG ¶ 19. The following is potentially applicable in this case:

(g) failure to file annual Federal, state, or local income tax returns as required or the fraudulent filing of the same.

Applicant failed to file timely file, as required, his 2010 through 2012 federal income tax returns, as well as his 2009 through 2014 state income tax returns. There is sufficient evidence to support the application of the above disqualifying condition.

Conditions that could mitigate the financial considerations security concerns are provided under AG ¶ 20. The following are potentially applicable:

(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; and

(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.

Applicant provided documentation to show that he filed his 2010 through 2012 federal income tax returns on November 20, 2015, the same date as his response to interrogatories. While he maintained that he timely filed his 2009, 2013, and 2014 state tax returns, his documentation shows that he filed his 2009 through 2014 state tax returns in March 2016, around the same time as his response to the SOR. His failure to timely file his relevant tax returns casts doubt on his current reliability, trustworthiness, and good judgment. AG ¶ 20(a) does not apply.

Applicant failed to present evidence of circumstances beyond his control that impaired his ability to timely file his tax returns. To the contrary, Applicant attributed his failure to timely file his 2012 federal and state tax returns to not getting them done before he went out of town, and then forgetting about them. He also failed to explain why he did not timely file his 2010 and 2011 federal tax returns, as well as his 2009 through 2011, 2013, and 2014 state tax returns. AG ¶ 20(b) does not apply.

Although Applicant has filed his delinquent tax returns and stated that he plans to timely file his future tax returns, there is little reason to conclude that Applicant will comply with the law in the future. Applicant has not established a track record of financial responsibility. AG ¶ 20(c) does 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 relevant 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 guidelines and the whole-person concept.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have incorporated my comments under Guideline F in this whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under that guideline, but some warrant additional comment.

Applicant served in the U.S. military from 2002 to 2009, during which time he was deployed overseas in 2007, and was granted a DOD security clearance. He has worked for a defense contractor since April 2009, and for his current company since December 2012. However, Applicant has not established a track record of financial responsibility. 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 continue Applicant’s eligibility for a security clearance. Eligibility for access to classified information is denied.

________________________ Candace Le’i Garcia Administrative Judge

FOOTNOTES

1 Items 4-5. 2 Items 1-5. He also provided copies of his 2007, 2009, and 2013 through 2014 federal tax returns, showing that he timely filed his 2007 and 2008 federal tax returns, and filed his 2009, 2013, and 2014 federal tax returns by May of that tax year’s April filing deadline. Item 5. 3 Items 1-5.