Loading case…

ISCR Case 18-00698 · CASE

ISCR Case 18-00698granted

Case Headnote

ISCR Case No. 18-00698

grantedNov 1, 2018· Hon. LeRoy F. Foreman· hearing

Synopsis

The applicant, a 52-year-old shipyard supervisor with a long history of military and defense industry service, faced security concerns under Guideline F due to failing to file federal and state income tax returns from 2010 to 2016. The applicant's financial issues stemmed from his wife's illness and subsequent death, which were beyond his control. The judge found that the applicant took prompt action to rectify the situation, leading to a decision to grant his security clearance.

Why the Applicant Prevailed

The applicant's financial issues were largely due to his wife's illness and death, which were beyond his control.
He promptly filed all past-due federal and state tax returns upon learning of the issue.
The applicant demonstrated candor, sincerity, and credibility during the hearing.

Conditions Referenced

Disqualifying

AG ¶ 19(c)raisedHistory of Not Meeting Financial Obligations
AG ¶ 19(f)raisedFailure to File Annual Federal, State, or Local Income Tax Returns

Mitigating

AG ¶ 20(a)appliedBehavior Happened so Long Ago, Was Infrequent, or Occurred Under Circumstances Unlikely to Recur
AG ¶ 20(b)appliedConditions That Resulted in the Financial Problem Were Largely Beyond the Person's Control
AG ¶ 20(g)appliedIndividual Has Made Arrangements with the Appropriate Tax Authority to File or Pay the Amount Owed

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 3, 2018
Answer filedApr 25, 2018
Hearing heldSep 26, 2018
Decision dateNov 1, 2018

Cite For

Mitigating Conditions Under Guideline F Due to Personal Circumstances
Consideration of the Whole-person Concept in Security Clearance Decisions
Impact of Personal Tragedy on Financial Responsibility Assessments

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's failure to timely file federal and state income tax returns for tax years 2010 through 2016 raised security concerns under Guideline F. However, the applicant successfully mitigated these concerns by demonstrating that the failures were due to circumstances beyond his control, including his wife's illness and death, and that he took prompt action to rectify the situation by filing the past-due returns.

1.a failed to timely file his federal and state income tax returns for tax years 2010 through 2016
Finding: For Applicant
Type: Tax Filing Failure
Response: Admitted
Disqualifying (¶19):
(c) a history of not meeting financial obligations
(f) failure to file / fraudulent filing of tax returns or unpaid tax
Mitigating applied (¶20):
(a) behavior happened long ago / infrequent / unlikely to recur
(b) conditions largely beyond the person’s control; acted responsibly
(g) arrangements made with the tax authority; in compliance
Mitigation:
Claimed
Other
1.b failed to timely file his federal and state income tax returns for tax years 2010 through 2016
Finding: For Applicant
Type: Tax Filing Failure
Response: Admitted
Disqualifying (¶19):
(c) a history of not meeting financial obligations
(f) failure to file / fraudulent filing of tax returns or unpaid tax
Mitigating applied (¶20):
(a) behavior happened long ago / infrequent / unlikely to recur
(b) conditions largely beyond the person’s control; acted responsibly
(g) arrangements made with the tax authority; in compliance
Mitigation:
Claimed
Other

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	failed to timely file his federal and state income tax returns for tax years 2010 through 2016	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	(a) behavior happened long ago / infrequent / unlikely to recur (b) conditions largely beyond the person’s control; acted responsibly (g) arrangements made with the tax authority; in compliance	Claimed Other
1.b	failed to timely file his federal and state income tax returns for tax years 2010 through 2016	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	(a) behavior happened long ago / infrequent / unlikely to recur (b) conditions largely beyond the person’s control; acted responsibly (g) arrangements made with the tax authority; in compliance	Claimed Other

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. 18-00698

) Applicant for Security Clearance )

For Government: Benjamin R. Dorsey, Esq., Department Counsel For Applicant: Johnny C. Cope, Esq.

______________

Decision ______________

FOREMAN, LeRoy F., Administrative Judge:

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

Statement of the Case

Applicant submitted a security clearance application (SCA) on September 15, 2017. On April 3, 2018, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent him a Statement of Reasons (SOR) alleging security concerns under Guideline F. The DOD CAF acted under Executive Order (Exec. Or.) 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) promulgated in Security Executive Agent Directive 4, National Security Adjudicative Guidelines (December 10, 2016), for all adjudicative decisions on or after June 8, 2017.

Applicant answered the SOR on April 25, 2018, and requested a hearing before an administrative judge. Department Counsel was ready to proceed on June 1, 2018, 11/01/2018

and the case was assigned to an administrative judge on June 27, 2018. Applicant retained counsel, and the case was reassigned to me on August 15, 2018. On August 27, 2018, the Defense Office of Hearings and Appeals (DOHA) notified Applicant that the hearing was scheduled for September 26, 2018. I convened the hearing as scheduled. Government Exhibits (GX) 1 and 2 were admitted in evidence without objection. Applicant testified and submitted Applicant’s Exhibits (AX) A through G, which were admitted without objection. I kept the record open until October 12, 2018, to enable him to submit additional documentary evidence. He timely submitted AX H through N, which were admitted without objection. DOHA received the transcript (Tr.) on October 3, 2018.

Findings of Fact1

In Applicant’s answer to the SOR, he admitted the allegations, with explanations. His admissions in his answer and at the hearing are incorporated in my findings of fact.

Applicant is a 52-year-old shipyard supervisor employed by a defense contractor since April 2001. Before he became a supervisor, he was a machinist working on aircraft carriers. He has held a security clearance since August 2002. He served on active duty in the U.S. Army from November 1985 to March 1992 and received an honorable discharge.

Applicant married in February 1990. For as long as Applicant was married, he made a direct deposit of his paycheck, and his wife paid all the bills and filed their federal and state income tax returns. She filed the tax returns electronically, and Applicant did not personally review and sign them.

Starting around 2000, Applicant’s wife began suffering from asthma, and it progressed to chronic obstructive pulmonary disease (COPD). By about 2009, she had difficulty breathing and was on oxygen, and she retired from her job as a paralegal. In September 2017, about the time that Applicant submitted his SCA, she told him that she had not filed their federal income tax returns for 2010 through 2016. Applicant had not personally filed a tax return since he was discharged from the Army in 1992, and he did not know how to file the past-due returns. With the help of his sister, who is a paralegal and a bookkeeper, he filed all the past-due federal returns on September 25, 2017. They were entitled to refunds for tax years 2010 through 2016. Applicant’s wife passed away in December 2017. (Tr. 15-24.)

In February 2018, Applicant was notified by the state tax authority that their state income tax returns had not been filed for 2010-2016. (Tr. 22-23.) Applicant filed all the past-due state tax returns in March 2018 and was entitled to refunds for tax years 2010 through 2016. (GX 2 at 8; AX A through N.) He timely filed his federal and state income tax returns for 2017. (Tr. 25.)

1 Applicant’s personal information is extracted from his security clearance application (GX 1) unless otherwise indicated by a parenthetical citation to the record.

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 SOR alleges that Applicant failed to timely file his federal and state income tax returns for tax years 2010 through 2016 (SOR ¶¶ 1.a and 1.b). 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 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 and the documentary evidence submitted at the hearing establish the following disqualifying conditions under this guideline: AG ¶ 19(c) “a history of not meeting financial obligations”) and AG ¶ 19(f) (“failure to file . . . annual Federal, state, or local income tax returns . . . 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; 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.

All three mitigating conditions are established. Applicant’s failures to timely file his tax returns were recent and numerous. Arguably, he was negligent by not paying attention to financial and tax matters, but he understandably relied on his wife, a paralegal, to handle them. The returns became past due because of his wife’s illness and death, circumstances that make recurrence unlikely. When Applicant learned that the tax returns had not been filed, he promptly obtained the help of his sister and filed them. All the past-due federal and state returns were filed before he received the SOR.

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).2

I have incorporated my comments under Guideline F in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under that guideline, but some warrant additional comment. Applicant served honorably in the U.S. Army. He has worked in a shipyard and held a security clearance for many years. He was candid, sincere, remorseful, and credible at the hearing. 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 mitigated the security concerns raised by his failure to timely file his federal and state tax returns.

Formal Findings

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

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

Subparagraphs 1.a and 1.b:

For Applicant

2 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.

Conclusion

I conclude that it is clearly consistent with the national security interests of the United States to continue Applicant’s eligibility for access to classified information. Clearance is granted.

LeRoy F. Foreman Administrative Judge