KEYWORD: Guideline F
DIGEST: The presence of some mitigating evidence does not alone compel the Judge to make a
favorable security clearance decision.  Adverse decision affirmed.
CASENO: 14-03528.a1
DATE: 07/22/2015
DATE: July 22, 2015
In Re:
--------
Applicant for Security Clearance
)
)
)
)
)
)
)
)
ISCR Case No. 14-03528
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Ryan C. Nerney, Esq.
The Department of Defense (DoD) declined to grant Applicant a security clearance.  On
October 2, 2014, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that
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 April 30, 2015, after the close of the record, Defense Office of Hearings and Appeals (DOHA)
Administrative Judge Jennifer I. Goldstein denied Applicant’s request for a security clearance. 
Applicant appealed, pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.  
Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary,
capricious, or contrary to law.  For the following reasons, the Board affirms the Judge’s unfavorable
security clearance decision.
The Judge made the following findings: Applicant is 58 years old.  He failed to file both
federal and state income tax returns for the years 2006 through 2012. As a result, he became
indebted to the federal government in the amount of $6,600.  The delinquency accumulated between
2007 to at least 2010.  Applicant has since satisfied his income tax arrearages.  His failure to file
income tax returns was a result of two conditions: his brother’s 2003 cancer diagnosis and a ruptured
disk in Applicant’s back.  Applicant actively assisted and cared for his brother during his cancer
treatment.  The treatment ended in approximately 2003.  Applicant’s back injury occurred in late
2005.  In 2006, he started a rehabilitation regimen that included Ibuprofen for the pain.  Applicant
stated that the medication did not affect his judgment or thinking.  He stated that he was
overwhelmed by the circumstances of his brother and his back problems and made a bad mistake
in judgment by not filing income tax returns.
Applicant testified that he filed all of his delinquent federal and state income tax returns for
tax years 2006 through 2012 in October 2014, after he received the SOR in this case.  He presented
tracking information showing he submitted something to both the IRS and the state taxing authority
at that time.  However, the contents are not identified on the tracking information, nor did he submit
copies of the returns themselves or other proof that the returns have been filed.  Despite his claims
to have filed all delinquent federal and state returns, he has not produced sufficient documentation
to support his claims.  Additionally, the evidence shows that Applicant filed his 2013 federal income
tax return on December 1, 2014 after being granted a filing extension only until October 15, 2014. 
Applicant signed a statement of intent indicating that he would never fail to file his federal and state
income tax returns again.  Applicant has a reputation for honesty, integrity, hard work, and high
personal and professional standards.
The Judge reached the following conclusions: Despite resolving his tax delinquency,
Applicant failed to produce sufficient evidence to document that he filed federal and state tax
returns, as required by law.  He has a history of not meeting his legal financial obligations.  The
evidence is sufficient to raise disqualifying considerations, thereby shifting the burden to Applicant
to rebut, extenuate, or mitigate those concerns.  None of the Guideline F mitigating conditions
provide full mitigation for Applicant’s failure to file his income taxes.  While his brother’s 2003
illness and his own 2006 back injury may initially have played a role in his failure to file tax returns
in 2006 or 2007, he failed to adequately explain how they affected his ability to file in subsequent
years.  Further, even if he filed those delinquent taxes, he did so after receiving the SOR and
learning his position was in jeopardy.  Moreover, he filed his 2013 federal income taxes late.  These
facts significantly undermine his signed statement promising to file his income taxes in a timely
manner in the future.  While he filed his 2014 income tax returns in a timely manner, he has not
2
established a proven track record in this respect.  He did not meet his burden to mitigate the security
concerns arising from financial considerations.
Applicant argues that he has filed his 2006 through 2012 tax returns, that there was ample
evidence in the record establishing this fact, and that the Judge failed to take this evidence into
account when rendering her decision.  He also asserts that the evidence of his circumstances with
his brother and his own health, coupled with evidence of his high credit score, his reputation for
honesty and trustworthiness, and his ten years of holding a security clearance without incident,
mandate a conclusion that the government’s concerns have been mitigated.  Applicant fails to
establish error on the part of the Judge.
The Judge found that Applicant had not established his burden of proving he had filed
income taxes from 2006 to 2012.  That finding is sustainable.  A Judge is presumed to have
considered all the evidence in the record unless he or she specifically states otherwise.  See, e.g.,
ISCR Case No. 07-00196 at 3 (App. Bd. Feb. 20, 2009).   Applicant does not rebut that presumption
here.  The Judge specifically mentions the evidence Applicant cites in support of his argument that
the tax return filings were established.  She gave a detailed description of why she did not consider
the evidence adequate to support Applicant’s assertion.  Additionally, the Judge concluded that, even
if Applicant had filed the returns in question, he wouldn’t have done so until after his receipt of the
SOR, and he filed his 2013 federal tax return late.  The Judge concluded that these facts significantly
undercut the weight to be accorded Applicant’s stated intent to file his future returns on time.  This
conclusion is reasonably supported by the record.  
 Applicant lists favorable evidence in the record in support of his general assertion
that the case was mitigated.  The application of disqualifying and mitigating conditions and whole-
person factors does not turn simply on a finding that one or more of them apply to the particular
facts of the case.  See, e.g., ISCR Case No. 01-14740 at 7 (App. Bd. Jan.15, 2003).  Thus, the
presence of some mitigating evidence does not alone compel the Judge to make a favorable security
clearance decision.  See, e.g., ISCR Case No. 06-25157at 2 (App. Bd. Apr. 4, 2008).  As the trier
of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence
outweighs the unfavorable evidence, or vice versa.  See, e.g., ISCR Case No. 06-10320 at 2 (App.
Bd. Nov. 7, 2007).  A party’s disagreement with the Judge’s weighing of the evidence, or an ability
to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge
weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary
to law.  See, e.g., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007).  Applicant’s appeal brief
essentially argues for an alternate interpretation of the record evidence.  Applicant has not
demonstrated that the Judge erred when she weighed the mitigating evidence against the seriousness
of the disqualifying conduct. 
The Board does not review a case de novo.  The favorable evidence cited by Applicant is not
sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law.  See, e.g.,
ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007).  After reviewing the record, the Board
concludes that the Judge examined the relevant data and articulated a satisfactory explanation for
the decision, “including a ‘rational connection between the facts found and the choice made.’”
3
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 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 decision of the Judge 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
4