DEPARTMENT OF DEFENSE
               DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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)       ISCR Case No. 12-10209
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)
Applicant for Security Clearance )
Appearances
For Government: Tara R. Karoian, Esquire, Department Counsel
For Applicant: Pro se
February 18, 2016
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Decision
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CEFOLA, Richard A., Administrative Judge:
Applicant submitted his Electronic Questionnaires for Investigations Processing
(e-QIP) on May 22, 2012.  On April 24, 2015, the Department of Defense (DOD) issued
a Statement of Reasons (SOR) detailing the security concerns under Guideline F for
Applicant.  The action was taken under Executive Order 10865, Safeguarding Classified
Information Within Industry (February 20, 1960), as amended; Department of Defense
Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program
(January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG),
effective within the Department of Defense after September 1, 2006.
Applicant answered the SOR in writing, with supporting documentation, on May
26, 2015, and requested an Administrative Determination by an administrative judge.
Department Counsel issued a File of Relevant Material (FORM) on August 3, 2015.
Applicant submitted nothing further in response to the FORM.  The case was assigned
to me on November 10, 2015.  Based upon a review of the pleadings and exhibits,
eligibility for access to classified information is granted.
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Findings of Fact
In his Answer to the SOR, Applicant denied the factual allegations in the two
Subparagraphs of the SOR.
Applicant is 52 years old, and has worked as a contractor for about 28 years.
(Item 3 at pages 5 and 10.)
Guideline F - Financial Considerations
1.a. and 1.b.  Applicant denies that he failed to file his federal and state tax
returns “for tax years 2010 thru 2012.”  (Item 2 at page 2.)  The genesis of the
Government’s allegations are Applicant’s May 2012 e-QIP, and his June 2012 OPM
interview.  (Items 3 and 4.)  During his interview, Applicant [Subject] admitted the
following to the investigator:
The Subject did not file his returns for those years [tax years 2009, 2010
and 2011] as he was distraught over the loss of his father and 2 close
friends.  The Subject has taken steps to have an accountant file his
returns and the Subject will have all of the returns filed no later than 7/12.
The Subject also indicated he has not paid his 2012 taxes . . . [as] the
2012 tax year has not ended [as the interview was conducted in June of
2012].  (Item 4 at page 1.)
In his answer to the SOR, Applicant has submitted documentation from his tax
preparer showing that he has filed both his federal and state tax returns for tax years
2009, 2010 and 2011, albeit late, in 2012.  (Item 2 at pages 3~5.)  His tax refunds from
the IRS total about $11,116.  His tax refunds from the state taxing authority total about
$1,569.  (Id.)
Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the adjudicative guidelines (AG).  In addition to brief
introductory explanations for each guideline, the adjudicative guidelines list potentially
disqualifying conditions and mitigating conditions, which are useful 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 over-arching
adjudicative goal is a fair, impartial and commonsense decision.  According to AG
Paragraph 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.
Paragraph 2(b) requires that “[a]ny doubt concerning personnel being considered for
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access to classified information will be resolved in favor of 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.  Likewise, I have avoided drawing
inferences grounded on mere speculation or conjecture.
Under Directive Paragraph E3.1.14, the Government must present evidence to
establish controverted facts alleged in the SOR.  Under Directive Paragraph E3.1.15,
the applicant is responsible for presenting “witnesses and other evidence to rebut,
explain, extenuate, or mitigate facts admitted by applicant or proven by Department
Counsel. . . .”  The applicant has the ultimate burden of persuasion as to obtaining 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 protect or
safeguard classified information.  Such decisions entail a certain degree of legally
permissible extrapolation as to potential, rather than actual, risk of compromise of
classified information.
Section 7 of Executive Order 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
The security concern relating to the guideline for Financial Considerations is set
out in Paragraph 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 a condition that could raise security concerns.  Under
Subparagraph 19(g) “failure to file annual Federal, state . . . income tax returns as
required” may raise security concerns.  Applicant failed to file three years of tax returns
in a timely fashion.  However, I find two countervailing Mitigating Conditions that are
applicable here.  Under Subparagraph 20 (b), it may be mitigating where “the conditions
that resulted in the financial problem were largely beyond the person’s control (e.g. . . .
a death . . .), and the individual acted responsibly under the circumstances.”  Applicant’s
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failure to file tax returns is directly attributed to the loss of his father and two close
friends.  Under Subparagraph 20 (d), it may also be mitigating where “the individual
initiated a good-faith effort to repay overdue creditors or otherwise resolve debts.”
Applicant has filed his income tax returns, and has received substantial refunds.
Under the whole-person concept, the administrative judge must evaluate an
applicant’s eligibility for a security clearance by considering the totality of Applicant’s
conduct and all the circumstances.  Under Paragraph 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.
The administrative judge should also consider the nine adjudicative process
factors listed at AG Paragraph 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.
I considered all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  The record evidence leaves me without
questions and doubts as to Applicant’s eligibility and suitability for a security clearance.
For this reason, I conclude Applicant has mitigated the security concerns arising from
his Financial Considerations, under the whole-person concept.
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
Subparagraph 1.b. For Applicant
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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.
Richard A. Cefola
Administrative Judge