DEPARTMENT OF DEFENSE
               DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 15-03208
)
)
Applicant for Security Clearance )
Appearances
For Government: Aubrey De Angelis, Esquire, Department Counsel
For Applicant: Pro se
November 21, 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 August 4, 2014.  On February 24, 2016, 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 acknowledged receipt of the SOR on March 7, 2016.  He answered the
SOR in writing on March 22, 2016, and requested a hearing before an Administrative
Judge.  The Defense Office of Hearings and Appeals (DOHA) received the request
soon thereafter, and I received the case assignment on May 9, 2016.  DOHA issued a
notice of hearing on May 25, 2016, and I convened the hearing as scheduled on June
23, 2016.  The Government offered Exhibits (GXs) 1 through 6, which were received
without objection.  Applicant testified on his own behalf and submitted Exhibits (AppXs)
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A through H, which were received without objection.  DOHA received the transcript of
the hearing (TR) on July 1, 2016.  I granted Applicant’s request to keep the record open
until July 22, 2016, to submit additional matters.  On July 22, 2016, he submitted Exhibit
I, which was received without objection.  On July 26, 2016, Department Counsel
indicated that she had no objection.  The record closed on July 26, 2016.  Based upon a
review of the pleadings, exhibits, and testimony, eligibility for access to classified
information is granted.
Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in all the
Subparagraphs of the SOR, with explanations.
Guideline F - Financial Considerations
Applicant is a 55-year-old “Standards Lab Technician.”  (TR at page 28 line 25 to
page 31 line 6.)  He has been married for “23 years,” has three children ranging in age
from 16~25, and has worked for his current employer since May of 2003.  (Id, and GX 1
at page 9.)
1.a.  Because Applicant’s wife was a self-employed “consultant,” they were
required to file their taxes on a quarterly basis.  (TR at page 31 lines 10~19.)  They “fell
behind” with these filings, and in about 2006, they hired a one-man firm to address their
deficiency.  (TR at page 31 line 20 to page 32 line 16.)  “Unfortunately, he passed
away.”  (Id.)  They then hired another firm, “TaxMasters,” which averred in October of
2009, “we were able to determine that you do not owe the Internal Revenue Service at
this time.  However, we are working to complete your 2005-2008 tax returns and this
may have an impact on the amount you owe.”  (TR at page 35 line 20 to page 36 line
21, and AppX B at page 1, emphasis in original.)  Unfortunately for Applicant, in 2012,
TaxMasters went bankrupt, as evidenced by the records of their bankruptcy.  (TR at
page 39 lines 6~20, and AppX B at pages 3~11.)  As a result, early in 2013, Applicant
hired a third tax preparation service, which filed their 2005~2009 federal and state
income tax returns that are of concern to the Government.  (AppX B at page 12.)
1.g.  Through the auspices of this third tax preparation service, Applicant is
current with his state taxing authority, as evidenced by documentation from his state
taxing authority.  (AppX A.)
1.b.~1.f. and 1.h.  Through the auspices of this third tax preparation service,
Applicant established “an installment payment plan” with the Internal Revenue Service
(IRS) by which he was making monthly payments of $734 towards the approximate
$246,000 owed.  This is evidenced by documentation from the IRS.  (AppX C.)  Most
recently, as Applicant is now current with the state taxing authority, he has increased
that amount to $1,000 per month towards the now $207,000 owed, as evidenced by
documentation from the IRS.  (TR at page 41 lines 10~12, and AppX I at pages 3~9.)  I
find that this is a good-faith effort to address his back federal taxes.
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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
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).
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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 several years of federal
and state tax returns in a timely fashion.  However, I find a countervailing Mitigating
Condition that is applicable here.  Under Subparagraph 20 (d), it may be mitigating
where “the individual initiated a good-faith effort to repay overdue creditors or otherwise
resolve debts.”  Applicant filed his delinquent income tax returns, is current with the
state taxing authority, and has an installment payment plan with the IRS.  Financial
Considerations is found for Applicant.
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.  A friend, who also knows Applicant in the
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work place, speaks most highly of him.  (AppX B.)  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
Subparagraph 1.c. For Applicant
Subparagraph 1.d. For Applicant
Subparagraph 1.e. For Applicant
Subparagraph 1.f. For Applicant
Subparagraph 1.g. For Applicant
Subparagraph 1.h. 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.
Richard A. Cefola
Administrative Judge
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