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ISCR Case 16-01444.h1 — CASE

ISCR Case 16-01444.h1granted

Case Headnote

ISCR Case No. 16-01444.h1

grantedOct 12, 2017· Hon. Robert E. Coacher· hearing

Summary

This case concerns a 55-year-old defense contractor whose security clearance eligibility was initially questioned under Guideline F (Financial Considerations). The Statement of Reasons (SOR) specifically alleged a failure to file federal and state income tax returns for the 2012-2014 tax years, raising disqualifying conditions F.1.c and F.1.f.

However, the applicant successfully mitigated these concerns. Before the SOR was issued, she filed all overdue tax returns. She further demonstrated a good-faith effort to resolve her tax obligations by establishing an installment agreement with the IRS to address her outstanding tax debt.

The judge ultimately granted the security clearance, applying mitigating conditions F.2.d and F.2.g. This decision was based on the applicant's proactive measures to rectify her tax issues and her currently stable financial situation, which includes a monthly surplus after expenses.

Why the Applicant Prevailed

Applicant filed all overdue tax returns before the SOR was issued.
She established an installment agreement with the IRS to pay her tax debt.
Her current financial situation is stable, with a monthly surplus after expenses.

Conditions Referenced

Disqualifying

F.1.craisedA History of Not Meeting Financial Obligations
F.1.fraisedFailure to File or Fraudulently Filing Annual Federal, State, or Local Income Tax Returns

Mitigating

F.2.dappliedThe Individual Initiated and Is Adhering to a Good-faith Effort to Repay Overdue Creditors or Otherwise Resolve Debts
F.2.gappliedThe Individual Has Made Arrangements with the Appropriate Tax Authority to File or Pay the Amount Owed and Is in Compliance with Those Arrangements

Key Rule Quoted

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

Procedural Posture

SOR issuedSep 30, 2016
Answer filedNov 1, 2016Applicant elected to have her case decided on the written record.
Hearing held—No hearing; decided on the written record.
Decision dateOct 12, 2017

Cite For

Mitigation of Financial Issues Under Guideline F
Good-faith Efforts to Resolve Tax Obligations
Whole-person Concept in Security Clearance Evaluations

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: granted

The judge found that the applicant mitigated the financial considerations security concerns related to her failure to file federal and state income tax returns for tax years 2012-2014. The applicant successfully filed all missing tax returns and established an installment agreement with the IRS, leading to a decision in her favor regarding the allegations under Guideline F.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	failed to file her federal and state income tax returns for tax years 2012-2014	For 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	(d) good-faith effort to repay or otherwise resolve debts (g) arrangements made with the tax authority; in compliance	Documented Debt Paid in Full Documented Payment Plan with IRS

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. 16-01444 ) ) Applicant for Security Clearance )

For Government: Ray T. Blank, Jr., Esq., Department Counsel For Applicant: Pro se

10/12/2017 ______________

STATEMENT OF CASE

______________

COACHER, Robert E., Administrative Judge:

Applicant mitigated the financial considerations security concerns. Eligibility for access to classified information is granted.

Statement of the Case

On September 30, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline F, financial considerations. The DOD CAF acted under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG).1 Applicant answered the SOR on November 1, 2016, and elected to have her case decided on the written record in lieu of a hearing. Department Counsel submitted the Government’s File of Relevant Material (FORM) on November 30, 2016. The evidence included in the FORM is identified as Items 4-5 (Items 1-3 include pleadings and transmittal information). The FORM was mailed to Applicant, who received it on December 8, 2016. Applicant submitted documents (AE A) in response to the FORM. AE A is admitted into evidence without objection. Items 4-5 are admitted into evidence without objection. The case was assigned to me on October 1, 2017.

FINDINGS OF FACT

Applicant admitted the single SOR allegation in her answer, with explanations. After a careful review of the pleadings and evidence, I make the following additional findings of fact.

Applicant is 55 years old. She has worked for a defense contractor since March 2015. From 2009-2015, she was an adjunct instructor. She formerly worked for DOD from 1987-2006, and received a disability pension from that position. She held a security clearance at that time. She is single, never married and has no children. She has an associate’s and bachelor’s degrees.2

The SOR alleges Applicant failed to file her federal and state income tax returns for tax years 2012-2014. Applicant explained that she failed to timely file her 2012 tax return because she experienced a $5,000 increase in tax debt. In the past, she had always received refunds. She attempted to contact an accountant, but was unable to do so. In March 2016, she started working with a tax professional. With this assistance, Applicant filed all her previously unfiled federal and state tax returns. She presented documentation showing that her state returns for 2012-2014 were filed in November 2016. She also presented documentation showing that her federal tax returns for 2012- 2014 were filed in May and August 2016, before the issuance of the SOR. Although failure to pay tax was not alleged in the SOR, Applicant’s documentation shows that she has an installment agreement to pay federal taxes owed.3

Applicant understands that she should have addressed her taxes in a timelier manner. In the future, she intends to file her tax returns and pay any taxes owed in an expedient manner. She continues to work with her tax professional and she has also started working with a financial manager. Her current finances are in good shape. A March 2016 credit report shows that she is paying all her expenses and debts in a prompt manner. Her personal financial statement shows that she has a monthly remainder after paying all expenses and debts of approximately $3,400. Her tax issues are resolved.4

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(a), 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 national security eligibility will be resolved in favor of the 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 EO 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 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. I have considered all of them under AG ¶ 19 and the following potentially apply:

(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.

Applicant failed to file her 2012-2014 state and federal income tax returns when they were due. I find both 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:

(d) the individual initiated and is adhering to a good-faith effort to repay overdue creditors or otherwise resolve debts; and

(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.

Applicant was faced with an unexpected amount of federal tax debt in 2012. She did not know how to address it immediately. She eventually sought assistance from a tax professional and filed all her missing federal and state tax returns. Her federal returns were filed before the issuance of the SOR. She intends to promptly file her returns in the future. She has an installment agreement with the IRS to pay any taxes owed. I find AG ¶¶ 20(d) and 20(g) 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(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 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. I considered her prior federal service and her action to resolve her tax situation.

Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated 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: FOR APPLICANT

Subparagraph 1.a: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.

_____________________________ Robert E. Coacher Administrative Judge

FOOTNOTES

1 I decided this case using the AG implemented by DOD on June 8, 2017. However, I also considered this case under the previous version of the AG implemented on September 1, 2006, and my conclusions are the same using either set of AG. 2 Items 2-3; AE A. 3 Items 2; AE A. 4 Items 5; AE A.