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                          DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 16-02126 
  )   
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Andrew H. Henderson, Esq., Department Counsel 
For Applicant: Sean M. Bigley, Esq. 
 
 
February 16, 2018 
______________ 
 
Decision 
______________ 
 
 
MOGUL, Martin H., Administrative Judge: 
 
Statement of the Case 
 
On November 22, 2016, in accordance with Department of Defense (DoD) 
Directive 5220.6, as amended (Directive), the DoD issued Applicant a Statement of 
Reasons (SOR) alleging facts that raise security concerns under Guidelines F and E.1 
The SOR further informed Applicant that, based on information available to the 
government, DoD adjudicators could not make the preliminary affirmative finding it is 
clearly consistent with the national interest to grant or continue Applicant’s security 
clearance. 
 
Applicant replied to the SOR on December 23, 2016, and requested a hearing 
before an administrative judge. (RSOR.) The case was assigned to me on February 15 
2017. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing 
                                                          
1 I considered the previous Adjudicative Guidelines, effective September 1, 2006, as well as the new 
Adjudicative Guidelines, effective June 8, 2017. My decision would be the same if the case was 
considered under the previous Adjudicative Guidelines, effective September 1, 2006. 
 
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on February 27, 2017, setting the hearing for April 4, 2017. The hearing was convened 
as scheduled.  
 
At the hearing, the Government offered Exhibits 1 through 8, which were 
admitted without objection.  Applicant testified on his own behalf and presented 
documents, which were identified and entered into evidence without objection as 
Exhibits A through F. The record was left open until April 21, 2017, for receipt of 
additional documentation. No additional documents were received. DOHA received the 
transcript of the hearing (TR) on April 12, 2017. Based upon a review of the pleadings, 
exhibits, and the testimony of Applicant, eligibility for access to classified information is 
granted.  
 
Findings of Fact 
 
 After a thorough and careful review of the pleadings, and exhibits, I make the 
following findings of fact:  
 
Applicant is 36 years old. He is unmarried and has three children. He completed 
some college courses. Applicant served in the United States Army from 1999 to 2006, 
and he received an Honorable Discharge. He is currently employed by the United 
States Post Office, and a defense contractor has applied for a security clearance on his 
behalf. Applicant seeks a DoD security clearance in connection with his potential 
employment in the defense sector. (Tr at 20-23.)  
 
Guideline F, Financial Considerations  
 
 The SOR lists four allegations (1.a. through 1.d.) regarding financial difficulties, 
under Adjudicative Guideline F. All of the allegations will be discussed below in the 
order they were listed on the SOR: 
 
1.a. The SOR alleges that Applicant failed to file his Federal Income Tax returns 
for tax years 2009, 2010, and 2011 in a timely manner, and he did not file those returns 
until 2012. Applicant denied this allegation in his RSOR.   
 
At the hearing, Applicant testified that during the tax years in question, he was 
working in Iraq for a Government contractor, and he believed that he did not have to file 
his Federal income tax returns until he returned to the United States. He explained that 
he learned that individuals who are serving in a combat zone, either as uniformed 
personnel or contract employees who support the military, have an extension of 180 
days after they return to the United States to file their income tax returns for the tax 
years that they were deployed. Exhibit C, “The Armed Forces’ Tax Guide” confirms that 
Applicant's assertion is correct. Applicant contended that he filed an email to the IRS 
telling them that he would file his tax returns when he returned to the United States, and 
he received an email back from the IRS that confirmed that this was the correct course 
of action for him to take. Applicant testified, and Exhibit D confirmed, that Applicant was 
deployed from January 2009 to sometime in December 2011. When he returned to the 
 
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United States in 2012, he filed his tax returns for the tax years that he had been 
deployed. (Tr at 24-27.)  
 
1.b. The SOR alleges that Applicant failed to file his State A Income Tax returns 
for tax years 2009, 2010, and 2011 in a timely manner, and he did not file those returns 
until 2012. Applicant denied this allegation in his RSOR.  At the hearing, Applicant 
testified that during tax years 2009 through 2011, he received no income from State A. 
He stated that his accountant, who prepared his taxes, also told him that he did not 
have to file State A tax returns since he had not earned any income from State A for 
those tax years. Applicant testified that when he was deployed, he had no home 
address in the United States, so he used his sister’s address in State A as an 
emergency contact, if something had to be sent to him in the U.S, but it was not where 
he lived during those years. (Tr at 28-31.)  
 
Applicant further stated that he has been disputing with State A for several years 
that he should not have had to file tax returns for State A or owe any taxes to State A. 
State A asked him to produce utility bills showing that he was out of the country during 
those years, but he contended that the bills were paid by the military, and he did not 
have any individual bills for that period. He testified that when he was unable to produce 
utility bills, State A simply placed a lien on his bank account and withdrew the money 
that State A claimed he owed them. (Tr at 31-33.) Exhibit B establishes that State A has 
released the lien on Applicant's property.  
 
Applicant also testified that he was informed that State A was going to refund his 
money, but he has more recently learned that they were not going to offer him a refund. 
So he is still disputing this action from Sate A, since he believed that he had no 
connection with State A, for which he should owe any taxes, and plans to hire a tax 
attorney to help him get his refund. (Tr at 76-78.) Applicant further averred that but for 
the years reviewed above, he has always filed all of his tax returns and paid his taxes in 
a timely manner. (Tr at 35.)  
   
1.c. The SOR alleges that Applicant is indebted to State A for a tax lien entered 
against him in January 2014 in the approximate amount of $27,347. Applicant denied 
this debt in his RSOR.  As has been reviewed in 1.b., above, Applicant's testimony and 
Exhibit B establish that the lien has been released and this debt has been satisfied.  
   
1.d. This overdue debt is cited in the SOR for a delinquent account in the amount 
of $296. Applicant denied this allegation in his RSOR. Applicant testified that this debt 
for cable television and internet was for a service, which his sister had cancelled when 
he was deployed. He strongly averred that he did not owe this debt, and he had not 
even been aware of it until the security clearance background check was conducted.  
He further testified that when he learned of the debt, he phoned the creditor and was 
informed that the debt was closed. (Tr at 35-36.) Exhibit D establishes that this debt has 
been paid in full.   
 
 
   
 
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Guideline E, Personal Conduct  
 
 The SOR lists two allegations (2.a. and 2.b.) regarding Personal Conduct, under 
Adjudicative Guideline E. 
 
2.a. The SOR alleges that Applicant deliberately falsified material facts on an 
Electronic Questionnaires for Investigations Processing (e-QIP) that he executed on 
September 9, 2015. He was asked whether he had ever been charged with any felony 
offenses, including any under the Uniform Code of Military Justice (UCMJ) and non-
military/civilian felony offenses. Applicant did not disclose that he had been charged in 
2004 with a violation of Article 120 of the UCMJ, the offense of Carnal Knowledge. 
Applicant denied this allegation in his RSOR.  
 
2.b. The SOR alleges that Applicant deliberately falsified material facts on an e-
QIP that he executed on May 6, 2010. Applicant also did not disclose on this e-QIP that 
he had been charged in 2004 with a violation Article 120 of the UCMJ, the offense of 
Carnal Knowledge. Applicant denied this allegation in his RSOR.    
 
At the hearing, Applicant explained that this event occurred at a bar outside the 
United States, where the minimum age required to enter was 18 years of age. He met a 
female at this bar, and he stated that this woman showed him her identification, which 
confirmed that she was 18 years of age. Later, after he returned to his base, he was 
informed that he was being accused of Carnal Knowledge, which is comparable to 
statutory rape. Applicant stated that when he was interviewed, he explained that the 
woman had shown him an identification establishing that she was 18 years of age. He 
also testified that this woman was pregnant, and she accused Applicant of being the 
father. After a paternity test was conducted, it was determined that he was not the father 
of this woman’s baby. It was also found during the investigation that this woman did 
have fraudulent documents that listed her age as 18. He averred that after an 
investigation the case was dismissed, and no further action was taken. (Tr at 38-39.)  
 
Applicant testified that because he never appeared before a judge and jury and 
because the case was dismissed after the investigation, he had not believed he should 
have had to answer affirmatively to the question on either e-QIP. Also his attorney, an 
Army captain, had told him that in the future it would not be required for him to disclose 
the information about the allegation, since the case was dismissed before it ever went to 
trial; it was like it never happened. He has continued to have this belief since his 
meeting with the attorney. (Tr at 40-42.)  
 
The evidence also establishes that a charge sheet was issued for this incident, 
but Applicant credibly testified that he did not know if he received the charge sheet. He 
also did not believe that he was ever charged with a felony, and he stopped reading 
before he got to the section that discussed a charge of violation of the UCMJ, for which 
he should have answered affirmatively on the e-QIP. (Tr at 50-60, Exhibit 7.)  
 
Applicant testified that he never met with a Government investigator after he 
completed his e-QIP in 2010, but when he was confronted by an investigator after he 
 
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completed his e-QIP in 2016, he was shocked to be asked about the 2004 allegation of 
Carnal Knowledge. He believed that it was something that was not listed anywhere, 
since he thought it was like it never happened. Finally, he testified that he would not 
have omitted this from either of his e-QIPs if he knew it should have been included, 
since the information showed that he was never found guilty of anything. (Tr at 42-44.)  
 
Mitigation  
 
 Applicant offered into evidence four very laudatory letters of recommendation. 
(Exhibit A.) He was described by a lieutenant colonel of the United States Air Force, as 
“a pillar of honesty, integrity, and dedication among our contract support.”    
 
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 to be used 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, administrative judges apply the guidelines in 
conjunction with the factors listed in AG ¶ 2 describing the adjudicative process. The 
administrative judge’s overarching adjudicative goal is a fair, impartial, and 
commonsense decision. According to AG ¶ 2(a), 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. AG ¶ 2(b) 
requires that “[a]ny doubt concerning personnel being considered for national security 
eligibility will be resolved in favor of the 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.  
 
Under Directive ¶ E3.1.14, the Government must present evidence to establish 
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the “applicant is 
responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or 
mitigate facts admitted by the applicant or proven by Department Counsel, and has the 
ultimate burden of persuasion as to obtaining a favorable clearance decision.”  
 
 A person who applies for access to classified information seeks to enter 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 
 
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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 (EO) 10865 provides that adverse 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 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. Financial distress can also be 
caused or exacerbated by, and thus can be a possible indicator of, other 
issues of personnel security concern such as excessive gambling, mental 
health conditions, substance misuse, or alcohol abuse or dependence. An 
individual who is financially overextended is at greater risk of having to 
engage in illegal or otherwise questionable acts to generate funds. 
Affluence that cannot be explained by known sources of income is also a 
security concern insofar as it may result from criminal activity, including 
espionage.  
 
  The guideline notes several conditions that could raise security concerns under 
AG ¶ 19. Applicant was alleged to have not filed his state and Federal tax returns in a 
timely fashion. He was also alleged to have a substantial state tax lien. The evidence is 
sufficient to raise disqualifying conditions (a), (c), and (f) as potentially applicable in this 
case:   
 
(a) inability to satisfy debts; 
 
(b) unwillingness to satisfy debts regardless of the ability to do so; 
 
(c) a history of not meeting financial obligations; 
 
(d) deceptive or illegal financial practices such as embezzlement, 
employee theft, check fraud, expense account fraud, mortgage fraud, filing 
deceptive loan statements and other intentional financial breaches of trust; 
 
 
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(e) consistent spending beyond one's means or frivolous or irresponsible 
spending, which may be indicated by excessive indebtedness, significant 
negative cash flow, a history of late payments or of non-payment, or other 
negative financial indicators; 
 
(f) failure to file or fraudulently filing annual Federal, state, or local income 
tax returns or failure to pay annual Federal, state, or local income tax as 
required; 
 
(g) unexplained affluence, as shown by a lifestyle or standard of living, 
increase in net worth, or money transfers that are inconsistent with known 
legal sources of income; 
 
(h) borrowing money or engaging in significant financial transactions to 
fund gambling or pay gambling debts; and 
 
(i) concealing gambling losses, family conflict, or other problems caused 
by gambling.  
 
 AG ¶ 20 provides conditions that could mitigate security concerns. I considered 
all of the mitigating conditions under AG ¶ 20 including: 
 
(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; 
 
(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; 
 
(c) the individual has received or is receiving financial counseling for the 
problem from a legitimate and credible source, such as a non-profit credit 
counseling service, and there are clear indications that the problem is 
being resolved or is under control; 
 
(d) the individual initiated and is adhering to a good-faith effort to repay 
overdue creditors or otherwise resolve debts; 
 
(e) the individual has a reasonable basis to dispute the legitimacy of the 
past-due debt which is the cause of the problem and provides 
documented proof to substantiate the basis of the dispute or provides 
evidence of actions to resolve the issue; 
 
(f) the affluence resulted from a legal source of income; and 
 
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(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. 
 
 As reviewed above, evidence was introduced to establish that Applicant had a 
good-faith belief that for the three years he was in a combat area and he was supporting 
the United States troops, he could defer filing his Federal taxes. While a question was 
raised as to whether his employment position came within this deferment, I find it 
reasonable for him to have believed that it did. Regarding the state taxes, I find the 
evidence presented sufficient to conclude that there was no connection of any kind with 
State A while Applicant was deployed in the combat area, so he reasonably had a belief 
that he did not have to file taxes for State A during 2009 through 2011. The evidence 
further establishes that no Federal or state taxes are still owed, and the additional SOR 
debt has been satisfied. Therefore, I find that mitigating factors AG ¶ 20 (a), (d), (e), and 
(g) are applicable in this case, and I find for Applicant under Guideline F. 
 
Guideline E, Personal Conduct 
 
 The security concern relating to the guideline for Personal Conduct is set out in 
AG ¶ 15: 
 
Conduct involving questionable judgment, lack of candor, dishonesty, or 
unwillingness to comply with rules and regulations can raise questions 
about an individual's reliability, trustworthiness, and ability to protect 
classified or sensitive information. Of special interest is any failure to 
cooperate or provide truthful and candid answers during national security 
investigative or adjudicative processes.  
 
  The guideline notes several conditions that could raise security concerns under 
AG ¶ 16. Because Applicant failed to include the information about the incident that 
resulted in his being charged with Carnal Knowledge on his two e-QIPs, I find that the 
evidence is sufficient to raise disqualifying condition (a) in this case:   
 
(a) deliberate omission, concealment, or falsification of relevant facts from 
any personnel security questionnaire, personal history statement, or 
similar form used to conduct investigations, determine employment 
qualifications, award benefits or status, determine national security 
eligibility or trustworthiness, or award fiduciary responsibilities; 
 
(b) deliberately providing false or misleading information; or concealing or 
omitting information, concerning relevant facts to an employer, 
investigator, security official, competent medical or mental health 
professional involved in making a recommendation relevant to a national 
security eligibility determination, or other official government 
representative; 
 
 
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(c) credible adverse information in several adjudicative issue areas that is 
not sufficient for an adverse determination under any other single 
guideline, but which, when considered as a whole, supports a whole-
person assessment of questionable judgment, untrustworthiness, 
unreliability, lack of candor, unwillingness to comply with rules and 
regulations, or other characteristics indicating that the individual may not 
properly safeguard classified or sensitive information; 
 
(d) credible adverse information that is not explicitly covered under any 
other guideline and may not be sufficient by itself for an adverse 
determination, but which, when combined with all available information, 
supports a whole-person assessment of questionable judgment, 
untrustworthiness, unreliability, lack of candor, unwillingness to comply 
with rules and regulations, or other characteristics indicating that the 
individual may not properly safeguard classified or sensitive information. 
This includes, but is not limited to, consideration of: 
 
(1) untrustworthy or unreliable behavior to include breach of 
client confidentiality, release of proprietary information, 
unauthorized release of sensitive corporate or government 
protected information; 
 
(2) any disruptive, violent, or other inappropriate behavior; 
 
(3) a pattern of dishonesty or rule violations; and 
 
(4) evidence of significant misuse of Government or other 
employer's time or resources; 
 
(e) personal conduct, or concealment of information about one's conduct, 
that creates a vulnerability to exploitation, manipulation, or duress by a 
foreign intelligence entity or other individual or group. Such conduct 
includes: 
 
(1) engaging in activities which, if known, could affect the 
person's personal, professional, or community standing; 
 
(2) while in another country, engaging in any activity that is 
illegal in that country; 
 
(3) while in another country, engaging in any activity that, 
while legal there, is illegal in the United States; 
 
(f) violation of a written or recorded commitment made by the individual to 
the employer as a condition of employment; and 
 
(g) association with persons involved in criminal activity 
 
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 AG ¶ 17 provides conditions that could mitigate security concerns. I considered 
all of the mitigating conditions under AG ¶ 17 listed below: 
 
(a) the individual made prompt, good-faith efforts to correct the omission, 
concealment, or falsification before being confronted with the facts; 
 
(b) the refusal or failure to cooperate, omission, or concealment was 
caused or significantly contributed to by advice of legal counsel or of a 
person with professional responsibilities for advising or instructing the 
individual specifically concerning security processes. Upon being made 
aware of the requirement to cooperate or provide the information, the 
individual cooperated fully and truthfully; 
 
(c) the offense is so minor, or so much time has passed, or the behavior is 
so infrequent, or it happened under such unique circumstances that it is 
unlikely to recur and does not cast doubt on the individual's reliability, 
trustworthiness, or good judgment; 
 
(d) the individual has acknowledged the behavior and obtained counseling 
to change the behavior or taken other positive steps to alleviate the 
stressors, circumstances, or factors that contributed to untrustworthy, 
unreliable, or other inappropriate behavior, and such behavior is unlikely 
to recur; 
 
(e) the individual has taken positive steps to reduce or eliminate 
vulnerability to exploitation, manipulation, or duress; 
 
(f) the information was unsubstantiated or from a source of questionable 
reliability; and 
 
(g) association with persons involved in criminal activities was unwitting, 
has ceased, or occurs under circumstances that do not cast doubt upon 
the individual's reliability, trustworthiness, judgment, or willingness to 
comply with rules and regulations. 
 
 Because of the advice that Applicant received from his military attorney 
regarding this incident, and because the case was dismissed without requiring him to 
appear in court, I find that Applicant had a reasonable, good-faith, although incorrect, 
belief that he did not have to include this information on his e-QIPs, and he was not 
trying to mislead the government when he answered as he did. I therefore, find that 
mitigating factors AG ¶ 17(b) and (c) are applicable in this case, and I find for Applicant 
under Guideline E. 
 
Whole-Person Concept 
 
 Under the whole-person concept, the administrative judge must evaluate an 
applicant’s eligibility for a security clearance by considering the totality of the applicant’s 
 
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conduct and all relevant circumstances. The administrative judge should consider the 
nine adjudicative process factors listed at AG ¶ 2(d):  
 
(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. 
 
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.  
 
I considered the potentially disqualifying and mitigating conditions in light of all 
facts and circumstances surrounding this case. I have incorporated my comments under 
Guidelines F and E in my whole-person analysis.  
 
Overall, the record evidence leaves me with no significant questions or doubts as 
to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I 
conclude Applicant has mitigated the Financial Considerations and Personal Conduct 
security concerns under the whole-person concept.  
 
Formal Findings 
 
 Formal findings for or against Applicant on the allegations set forth in the SOR, 
as required by ¶ E3.1.25 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 
 
Paragraph 2, Guideline E:   FOR APPLICANT 
 
  Subparagraph 2.a.:    For Applicant 
Subparagraph 2.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 national 
security eligibility for a security clearance. Eligibility for access to classified information 
is granted. 
 
 
 
 
Martin H. Mogul 
Administrative Judge