KEYWORD: Guideline F
DIGEST: There is no presumption of error below.  The appealing party has the burden of
demonstrating error.  Adverse decision affirmed.
CASENO: 12-10062.a1
DATE: 02/26/2015
DATE: February 26, 2015
In Re:
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Applicant for Security Clearance
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ISCR Case No. 12-10062
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro se
The Department of Defense (DoD) declined to grant Applicant a security  clearance.  On
April 3, 2014, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that
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decision—security concerns raised under Guideline F (Financial Considerations) of Department of
Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested a hearing.
On December 10, 2014, after the hearing, Defense Office of Hearings and Appeals (DOHA)
Administrative Judge Rita C. O’Brien denied Applicant’s request for a security clearance.  Applicant
timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raises the following issue on appeal: whether the Judge made an inaccurate finding
of fact based on a misinterpretation of a document submitted by Applicant.  For the following
reasons, the Board affirms the Judge’s unfavorable decision. 
The Judge made the following findings of fact: Applicant is 36 years old.  Applicant did not
timely file federal income tax returns for 2004 through 2012 or state tax returns for 2005 through
2010.  While living and working overseas between 2004 and 2009, coworkers told him that his
income was not taxable because he was working outside the United States.  Applicant also believed
that he was due refunds for the tax years in question, so he did not file returns while outside the
country.  Applicant had not claimed the appropriate filing status for his income level, which resulted
in his owing taxes to the IRS and to his state of residence.  In 2011, the IRS filed a tax lien against
Applicant for the tax years 2004 through 2007.  The lien was for $42,248, and was ultimately
released in May 2013.  By the time of his security interview in 2012, Applicant had filed his 2004
and 2008 tax returns as he was planning to file his outstanding delinquent returns one every other
week.  He planned to pay any penalties he owed, and to have all his back taxes resolved by August
2012.  Returns were filed, but as of April 2012, he still owed the IRS $30,000.  In August 2014,
Applicant and the IRS agreed on a payment plan of $450 per month.  Applicant has paid his state
taxes for tax years 2008, 2009, and 2010.  As of September 2014, he owed $383 in delinquent state
taxes for tax year 2011 and $219 for tax year 2012.  
Applicant’s net monthly income is $7, 237.  This includes income of his wife.  His monthly
expenditures, which include the $450 IRS payment and a $50 per month payment for back state
taxes, is $7,309.  This results in a negative monthly cash flow of $74.
The Judge reached the following conclusions: Applicant’s failure to file income tax returns
is not recent, however, it is frequent because it involved returns for numerous years.  The fact that
Applicant did little during a period of six years to investigate the validity of information from
coworkers about his tax obligations casts doubt on his reliability and judgment.  He has paid back
state taxes for four years, and is making payments on his federal and remaining state tax
delinquencies.  However, his current financial statement shows a negative monthly remainder.
Applicant’s ability to maintain his payment plans is unclear.  Applicant cannot receive full credit
for a good-faith effort to meet his tax obligations.  He did not file his first delinquent tax return until
two years after he returned to the United States and after the IRS filed a tax lien against him.
Although he has begun payment plans with the IRS and the state, he did not begin them until 2014.
With his cash deficit each month, it is unclear if Applicant will be able to maintain his payment
plans.  He has not mitigated the security concerns raised by the financial considerations guideline.
1In fact, this interpretation is bolstered significantly by Applicant’s hearing testimony wherein he stated that
he paid $1,600 a month in child support, $1,126 of which was automatically deducted from his bank account and was
supplemented by an additional payment by him of $500 per month  (Tr. at 87).  
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 Applicant asserts that the Judge was incorrect in finding that he runs a negative balance on
his monthly cash flow, and that this incorrect finding was instrumental in the Judge’s ultimate
conclusion that it was not clearly consistent with the interests of national security to grant him a
clearance.  At issue is the Judge’s evaluation and interpretation of Applicant’s Exhibit J, a document
showing the monthly household expenses for Applicant and his wife.  The document shows a
monthly entry for child support expenses in the amount of $1,693.  There is an asterisk placed next
to this amount by Applicant and the asterisk relates to a note at the bottom of the expense list that
reads, “Child support amount $1,193 automatically paid.”  Applicant maintains that the variance in
the two figures constitutes a discrepancy resulting from an typographical error wherein he
mistakenly listed his monthly child support payments as $1,693.  He states that $1,193 is the correct
amount, and the Judge’s finding that he had a negative monthly cash flow of $74 was based on her
reliance on the incorrect $1,693 figure when making findings.  Applicant states that the Judge’s
decision was based on her erroneous conclusion that, with a negative monthly cash flow, Applicant’s
prospects for paying off his delinquent tax debts in the future were limited.  Applicant has not
demonstrated error on the part of the Judge.
There is no presumption of error below, and the appealing party has the burden of
demonstrating such error.  See, e.g., ISCR Case No. 00-0339 at 2 (App. Bd. Mar. 22, 2001).
Applicant has failed to establish that the Judge’s reliance on the $1,693 figure when calculating
Applicant’s monthly expenses was error.  The language contained in the asterisk note is vague, but
a reasonable interpretation of the language in the note at the bottom of Applicant’s Exhibit J is that
$1,193 of Applicant’s expenses for child support were deducted from his pay, or “automatically
paid.” and the balance was paid through affirmative action by Applicant.1  There would appear to
be no other reason for including the asterisk and the note and relating them to the $1,693 figure.
There is nothing to suggest that the $1,193 figure was a typographical error.  Applicant also claims
that a daycare expense figure of $550 as listed on Exhibit J was in error, and the proper figure should
be $312.  The Judge did not commit error if she relied on representations made by Applicant that
he now claims were made mistakenly.  The assertion that $312 is the correct day care figure
constitutes new evidence, which the Board cannot consider.  Directive ¶ E3.29.1.  
Even if Applicant could establish that the larger child support figure used by the Judge was
error, a review of the Judge’s decision convinces the Board that Applicant’s negative cash flow was
not the principal factor in the Judge’s analysis.
The Board does not review a case de novo.   After reviewing the record, the Board concludes
that the Judge examined the relevant data and articulated a satisfactory explanation for her decision,
“including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle
Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting
Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).  “The general standard is
that a clearance may be granted only when ‘clearly consistent with the interests of the national
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security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).  Therefore, the Judge’s
ultimate unfavorable security clearance decision is sustainable.
Order
The Judge’s decision is AFFIRMED.
Signed: Michael Ra’anan            
Michael Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: Jeffrey D. Billett               
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: James E. Moody              
James E. Moody
Administrative Judge
Member, Appeal Board