1 
        DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: ) 
)
) ISCR Case No. 16-03549 
)
Applicant for Security Clearance ) 
Appearances 
For Government: Al\lison O’Connell, Esq., Department Counsel 
For Applicant: Pro se 
______________ 
Decision 
______________ 
NOEL, Nichole L., Administrative Judge: 
Applicant contests the Department of Defense’s (DOD) intent to deny his 
eligibility for a security clearance to work in the defense industry. Applicant mitigated the 
personal conduct concerns, but the financial considerations concerns remain. Applicant 
failed to timely file his federal and state income tax returns and timely pay his income 
taxes, as required, for seven of the last eight years. He also failed to resolve his 
delinquent accounts. Applicant’s request for access to classified information is denied.  
Statement of the Case 
On July 21, 2017, the DOD issued a Statement of Reasons (SOR) detailing 
security concerns under the financial considerations guideline.1 DOD adjudicators were 
unable to find that it is clearly consistent with the national interest to grant Applicant’s 
security clearance and recommended that the case be submitted to a Defense Office of 
Hearings and Appeals (DOHA) administrative judge for a determination whether to deny 
his security clearance.  
1 The DOD acted under Executive Order (EO) 10865, Safeguarding Classified Information within Industry, 
signed by President Eisenhower on February 20, 1960, as amended; as well as DOD Directive 5220.6, 
Defense Industrial Personnel Security Clearance Review Program, dated January 2, 1992, as amended 
(Directive), and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, 
implemented on June 8, 2017.   
12/28/2018
 
2 
 
Applicant timely answered the SOR and requested a hearing. At the hearing, 
convened on September 10, 2018, I admitted Government’s Exhibits (GE) 1 through 18 
and Applicant’s Exhibits (AE) A through E, without objection. After the hearing, 
Applicant timely offered AE F through K, which are also admitted without objection. 
DOHA received the transcript (Tr.) on September 19, 2018.   
 
Procedural Matters 
 
 At the beginning of the hearing, Applicant indicated that he did not remember 
receiving the October 2017 letter Department Counsel sent to him containing the 
documents the Government planned to use in its case against him. Applicant confirmed 
that the letter and the attached documents were sent to the correct address. Before the 
hearing started, I offered Applicant the opportunity to review the letter and the 
Government’s proposed exhibits. After doing so, Applicant confirmed he wanted to 
proceed with the hearing as scheduled.2  
 
Findings of Fact 
 
 Applicant, 45, has worked as a security guard with several different federal 
contracting companies since October 2013. He has worked for his current employer, 
earning approximately $60,000 annually, since December 2014. He completed a 
security clearance application, his first, in March 2015, disclosing a 2012 conviction for 
driving under the influence of alcohol. The ensuing investigation revealed a more 
extensive criminal record. The investigation also revealed that Applicant failed to file 
federal and state tax returns for a number of years between 2010 and 2015, and that 
Applicant owes $7,000 on 12 delinquent accounts.3  
 
 The SOR alleges Applicant’s criminal history under the personal conduct 
guideline. Applicant’s first arrest for unlawful use of a vehicle, occurred in 1990 (SOR ¶ 
1.a). He was among a group of people participating in a carpool. Neither he nor the 
other passengers were aware that the driver did not have permission to use the car. He 
was released without being charged. He was arrested again in 1992 for felony assault 
on a police officer (SOR ¶ 1.b). Applicant testified that he and his friends intervened in a 
domestic dispute they witnessed on a public basketball court. When the police arrived, 
Applicant was one of several people arrested. He denies assaulting a police officer. The 
charges were dismissed.  In 2011, Applicant was charged with domestic violence after 
an incident involving his son, who was 20 at the time (SOR ¶ 1.e). The young man was 
intoxicated and started hitting his 18-year-old sister. Applicant intervened. Although he 
was arrested, Applicant testified that he was released without charges. Applicant was 
charged in March 2013 for driving with a suspended license (SOR ¶ 1.i) and in 
November 2013 for driving on a revoked license (SOR ¶ 1.j). Applicant testified that he 
                                                          
2 Tr. 5-6; HE I. 
 
3 Tr. 42-45; GE 1-3, 5-16. 
 
 
3 
 
was unaware of the status of his license in March 2013 and that the November 2013 
incident was the result of an administrative mistake. Both charges were nolle prossed.4  
 
Applicant admits being arrested multiple times for alcohol-related incidents. He 
was arrested in 1996 and 1998 for DUI (SOR ¶¶ 1.c – d). The dispositions of these 
charges is not in the record. In 2009 and 2012, Applicant was charged with driving while 
impaired by alcohol (SOR ¶¶ 1.f and 1.h) He was convicted both times. He received 
probation before judgment for the 2009 incident and served seven days in jail for the 
2012 incident. At hearing, Applicant admitted that he had an alcohol problem. However, 
he realized that his alcohol consumption habits were incompatible with his work as a 
security officer. He has abstained from alcohol since 2014.5  
 
The SOR also alleges a series of financial issues, specifically that Applicant 
failed to file his federal and state income tax returns for 2010 through 2015 (SOR ¶¶ 1.a 
and 1.b).  However, based on wage and income transcripts in the record for 2010 
through 2012, Applicant was not required to file federal or state income tax returns for 
2012. Although he testified that his 2013 income did not meet the minimum filing 
requirement, he did not provide any corroborating documentation. Applicant explained 
that he failed to file his federal and state income tax returns because “time got away 
from him.”  He filed his 2011, 2014 and 2015 federal income tax returns in September 
2017, but did not pay the additional taxes owed. He testified that his outstanding state 
income tax returns were prepared, but he did not know if they had been filed. At hearing 
he admitted that he also failed to file his 2016 and 2017 federal and state income tax 
returns.6 
 
Believing he owed outstanding federal taxes, Applicant testified that he intended 
to hire a law firm to help him negotiate with the IRS to pay a reduced amount. However, 
in his post-hearing submissions, he provided an installment agreement with the IRS 
filed in October 2018 to pay $11,048 in outstanding federal taxes for the 2011 and the  
2014 through 2017 tax years. The installment plan, which requires $400 monthly 
installment, begins in December 2018. Applicant did not provide any additional 
information about the status of his outstanding state income tax returns. Applicant is 
also in debt to the state for $1,064 (SOR ¶ 2.c) for an outstanding judgment. He claims 
the judgment had been paid, but did not provide any corroborating documentation.7 
 
In addition to his outstanding income tax obligations, the SOR also alleges that 
Applicant owes $7,000 for 12 delinquent accounts (SOR ¶¶ 2.d through 2.n). Applicant 
admits that he owes the accounts alleged in SOR ¶¶ 2.d through 2.i. In his answer, he 
claimed that the debts were consolidated with a debt repayment program. At the 
hearing, Applicant testified that he signed up for the program, but did not execute a 
                                                          
4 Tr. 24-29; GE 3, 5, 8-9. 
 
5 Tr. 24-25, 30-32; GE 6-7.  
 
6 Tr. 32-39, 46; Answer; AE A-E. 
 
7 Tr. 33, 39-40, 47; GE 10; AE G-H. 
 
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repayment plan. He provided documentation that he has made arrangements to resolve 
SOR ¶ 1.e, the deficiency balance on an automobile loan. He plans to work additional 
hours to pay the $1,226 debt. Applicant denies owing the debts alleged in SOR ¶¶ 1.j 
through 1.n as he is not familiar with the accounts. He believes that the debts may be 
attributed to identify theft. He did not provide any documentation to establish that he 
filed an identity theft complaint or that he challenged the debts in question with the 
credit reporting agencies. The alleged delinquent accounts remain unresolved.8 
 
Currently, Applicant provides the only source of income for his household, which 
includes his partner and their four children, ages 27, 25, 21, and 15. After paying his 
recurring bills, Applicant has approximately $200 in disposable income each month. He 
hopes his partner, who has been unemployed since April 2018, is able to secure 
employment in the near future.9  
  
Policies 
 
 When evaluating an applicant’s suitability for a security clearance, the 
administrative judge must consider the adjudicative guidelines. 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 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.” The 
applicant has the ultimate burden of persuasion to obtain a favorable security decision.  
 
                                                          
8 Tr. 40-42, 48-49; GE 2, 11-16; AE I-J. 
 
9 Tr. 45-52. 
 
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 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 safeguard 
classified information. Such decisions entail a certain degree of legally permissible 
extrapolation of potential, rather than actual, risk of compromise of classified 
information. 
 
Section 7 of 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 E, Personal Conduct 
 
 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 information. The 
SOR alleges Applicant’s criminal history, 10 charges, including 2 convictions, between 
1990 and 2012. This adverse information raises concerns under the criminal conduct 
and alcohol consumption guidelines, but given the passage of time, the alleged 
incidents are insufficient for an adverse determination under either rubric. However, 
when considered as a whole, the incidents support a whole-person assessment of 
questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to 
comply with relies and regulations, or other characteristics indicating that the individual 
may not properly safeguard classified or sensitive information.10 However, the record 
contains sufficient evidence to mitigate the personal conduct concerns.  
 
 Of the 10 alleged arrests, 5 are minor incidents (1.a, 1.b, 1.g, 1.i, 1.j) that do not 
reflect negatively on Applicant’s security worthiness.11 While he was involved in the 
incidents alleged in SOR ¶¶ 1.a, 1.b, and 1.g, he was not the instigator or primary actor. 
While the traffic violations alleged in SOR ¶¶ 1.i and 1.j could suggest a disregard for 
the laws, rules, and regulations, it appears that SOR 1.i was unintentional and ¶ 1.j was 
the result of an administrative snafu. However, the remaining five incidents, SOR ¶¶ 1.c 
- 1.f, and 1.h, all involving driving under the influence of alcohol, raise concerns about 
Applicant’s alcohol consumption and its impact on his judgment. His multiple instances 
of driving under the influence of alcohol also shows a disregard for laws, rules, and 
regulations. However, these incidents are mitigated by the passage of time.12 
                                                          
10 AG ¶ 16(c). 
 
11 AG ¶ 17(c). 
 
12 AG ¶ 17(d).  
 
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Applicant’s last alcohol-related incident occurred over six years ago. Since then, he has 
acknowledged his alcohol problem and recognized his behavior was incompatible with 
his professional responsibilities and duties. He has abstained from alcohol for four 
years, making recurrence of similar criminal conduct unlikely.13 
 
Guideline F, Financial Considerations 
 
Failure to meet one’s 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.14 The SOR alleges Applicant’s failure to file his federal and 
state income tax returns for 2010, 2011, 2012, 2013, 2014, and 2015 and that he has 
approximately $7,000 in unresolved delinquent debts. The record is sufficient to 
establish the Government’s prima facie case that Applicant has a history of not meeting 
his financial obligations, and that he has failed to timely file his federal and state income 
returns, as required.15   
 
Applicant’s failure to file was caused by his own negligence and remains an 
ongoing problem. He failed to produce evidence that his outstanding federal and state 
income returns have been filed. His post-hearing efforts to establish an installment 
agreement with the IRS is not sufficient to establish that his tax problems are remedied 
or under control. Applicant also failed to establish a record of debt repayment or that he 
has filed disputes with the credit reporting agencies to challenge the accounts he 
believes are the result of identity theft. The delinquent debts alleged in the SOR remain 
unresolved and he does not have a plan to resolve them.  
 
Based on the record, doubts remain about Applicant’s ongoing suitability for 
access to classified information. In reaching this conclusion, I have also considered the 
whole-person factors at AG ¶ 2(d). Applicant takes his position as a security guard 
seriously and his role has helped him mature and grow into a more responsible adult. 
However, he has not done enough to establish financial rehabilitation.  
 
 
 
 
 
 
 
 
 
 
                                                          
13 AG ¶ 17(d). 
 
14 AG ¶ 18. 
 
15 AG ¶¶ 19(c) and (f).  
  
 
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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, Personal Conduct:   FOR APPLICANT 
 
 Subparagraphs 1.a – 1.j:    For Applicant 
 
Paragraph 2, Financial Considerations:  AGAINST APPLICANT 
 
 Subparagraphs 2.a – 2.n:    Against Applicant 
 
Conclusion 
 
 In light of all of the circumstances presented, it is not clearly consistent with the 
national interest to grant Applicant a security clearance. Applicant’s eligibility for access 
to classified information is denied. 
                                                
 
 
________________________ 
Nichole L. Noel 
Administrative Judge