KEYWORD: Guideline E; Guideline F
DIGEST: Applicant has raised some due process issues. He notes that the Judge applied
adjudicative guidelines that were effective as of June 8, 2017,  after the date of his SOR.  He
argues that the Judge should have applied the guidelines in effect on the date of his SOR. 
However, as Department Counsel states in his Reply Brief, the DoD has implemented Security
Executive Agent Directive 4, mandating that all adjudications will utilize the new guidelines. 
This requirement applies without regard to the date of an SOR.  Applicant received notice of this 
along with copies of the appropriate guidelines.  Applicant also contends that DOHA unduly
delayed convening his hearing until after his 2017 taxes were due, thereby prompting the Judge
to inquire into their status to his detriment.  However, it was Applicant himself who broached his
2016 and 2017 tax filings.  In any event, we find no reason to believe that if these subsequent tax
years had not been considered the Judge would have arrived at a different decision.  There is no
reason to conclude that the timing of the hearing prejudiced Applicant’s ability to present his
case for mitigation.  Accordingly, we have no authority to comment on the manner in which
officials have processed Applicant’s case.  Applicant was not denied due process. Adverse
decision affirmed.
CASENO: 17-01193.a1
DATE: 01/22/2019
DATE: January 22, 2019
In Re:
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Applicant for Security Clearance
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ISCR Case No. 17-01193
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Allison R. Weber, Esq.
The Department of Defense (DoD) declined to grant Applicant a security clearance.  On May
19, 2017, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that
decision–security concerns raised under Guideline F (Financial Considerations) and Guideline E
(Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended)
(Directive).  Applicant requested a hearing.  On October 25, 2018, after the hearing, Defense Office
of Hearings and Appeals (DOHA) Administrative Judge Edward W. Loughran denied Applicant’s
request for a security clearance.  Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raised the following issues on appeal: whether the Judge denied him due process;
whether the Judge raised concerns not included in the SOR; whether the Judge placed improper
limitations on Applicant’s evidence; and whether the Judge’s adverse decision was arbitrary,
capricious, or contrary to law.  The Judge’s favorable findings under Guideline E are not at issue
in this appeal.  Consistent with the following, we affirm.  
The Judge’s Findings of Fact
The Judge made the following pertinent findings of fact:  Applicant has a history of
significant delinquent debt, including back taxes owed the Federal Government.  While they were
married, Applicant’s now ex-wife had many personal problems, for which Applicant paid for
counseling and medical treatment.  He hired a lawyer to assist him in a dispute with child protective
services, occasioned by his wife’s difficulties.  Applicant was not able to pay all of his bills, and he
was discharged in bankruptcy in 2008.  
He claimed to have a payment plan with the IRS, which was interrupted after his credit union
closed his account.  He stated that he could not set up another payment plan but documented that
he has been making payments to the IRS since mid-2018.  He did not provide documentation from
the IRS showing how much he previously paid and how much he still owes.  He filed his 2017
Federal and state income tax returns, but he did not show that he paid the Federal tax obligation
owed for that year.  Applicant stated that his financial problems stabilized after his bankruptcy
discharge.  However, in 2016, Applicant’s ex-wife was evicted from her home and moved in with
their daughter.  Applicant provided his wife and daughter with financial support, as he did for his
two other children.  He did so at the expense of paying his own debts.
The Judge found that some of the debts alleged in the SOR were duplicates of others or were
not substantiated.  He also found that some of the SOR debts had been resolved but that a number 
had not been, including those to the IRS.  Applicant has received financial counseling and is making
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payments on a plan proposed by “a noted financial advisor.”  Decision at 3.  In addition, he is
working additional jobs, maintains a budget, and is setting aside funds for emergency situations.
The Judge’s Analysis
The Judge concluded that Applicant’s financial problems raised three disqualifying
conditions: inability to satisfy debts, a history of not meeting financial obligations, and failure to file
or fraudulently filing tax returns or failure to pay income tax as required.1  The Judge noted
circumstances outside Applicant’s control that affected his financial problems, such as his family’s
medical expenses and unexpected car repairs.  However, he also concluded that Applicant had not
provided sufficient corroborating evidence to show that he had acted responsibly in resolving his
debts.  Though noting his debt resolution plan, the Judge stated that it constituted nothing more than
a promise to resolve debts in the future rather than a track record of debt payment.  He also stated
that, “[f]or whatever reason, Applicant has left me in the dark about his taxes,” noting a paucity of
corroborating evidence concerning the amounts paid, the amount yet owed, etc.  Decision at 7.  The
Judge concluded that Applicant’s financial problems are recent and ongoing and continue to cast
doubt upon his reliability, trustworthiness, and good judgment.
Discussion
Applicant has raised some due process issues. He notes that the Judge applied adjudicative
guidelines that were effective as of June 8, 2017,  after the date of his SOR.  He argues that the
Judge should have applied the guidelines in effect on the date of his SOR.  However, as Department
Counsel states in his Reply Brief, the DoD has implemented Security Executive Agent Directive 4,
mandating that all adjudications will utilize the new guidelines.  This requirement applies without
regard to the date of an SOR.  See ISCR Case No. 15-02728 at 4 (App. Bd. Feb. 9, 2018).2 
Applicant received notice of this, both from the Department Counsel and from the Chief Hearing
Office Judge, along with copies of the appropriate guidelines.  Applicant also contends that DOHA
unduly delayed convening his hearing until after his 2017 taxes were due, thereby prompting the
Judge to inquire into their status to his detriment.  However, it was Applicant himself who broached
his 2016 and 2017 tax filings.  Tr. at 58.  In any event, we find no reason to believe that if these
1Directive, Encl. 2, App. A ¶¶ 19 (a, c, and f).
2  See also Security Executive Agent Directive 4 at heading “(Effective: 08 JUNE 2017)”; “B. PURPOSE:  This
Security Executive Agent (SecEA) Directive establishes the single, common adjudicative criteria for all covered
individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive
position.  The Guidelines reflected herein supercede all previously issued national security adjudicative criteria or
guidelines. . . .   E. POLICY: 1. The National Security Adjudicative Guidelines in Appendix A shall be used by all
authorized adjudicative agencies when rendering a determination for initial or continued eligibility for access to classified
information or initial or continued eligibility to hold a sensitive position. . . . [and]  F. EFFECTIVE DATE: This
Directive becomes effective 180 days after the date of signature.” [It was signed on 10 December 2016.]
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subsequent tax years had not been considered the Judge would have arrived at a different decision.3 
There is no reason to conclude that the timing of the hearing prejudiced Applicant’s ability to
present his case for mitigation.  Accordingly, we have no authority to comment on the manner in
which officials have processed Applicant’s case.  See, e.g., ISCR Case No. 11-12730 at 2 (App. Bd.
Sep. 4, 2013).  Applicant was not denied due process.
Applicant contends that the Judge improperly considered matters that were not alleged in the
SOR, specifically information about his 2016 and 2017 income tax returns.  Again, it was Applicant
who introduced the subject of his subsequent returns.  Moreover, it was not improper for the Judge
to have considered this matter, insofar as non-alleged conduct can be relevant on issues of
mitigation, rehabilitation, the whole-person analysis, etc.  See, e.g., ISCR Case No. 15-07369 at 3 
(App. Bd. Aug. 16, 2017).  Our review of the Decision and of the record as a whole persuades us
that the Judge considered this evidence in its proper context.  
Applicant contends that the Judge improperly limited the evidence that he wished to submit. 
He argues that, by commenting upon a paucity of documentary corroboration, the Judge discounted
his hearing testimony, thereby imposing an evidentiary standard not found within the Directive. 
However, it is reasonable to expect an applicant to present corroborating documentation of his
efforts at debt resolution.  See, e.g., ISCR Case No. 15-07062 at 2 (App. Bd. Nov. 21, 2017).  In a
DOHA proceeding, the applicant bears the burden of persuasion that he or she should have access
to classified information, and corroborating evidence can go a long way toward enabling an
applicant to meet that burden.  We note that the Judge admitted all documents that Applicant
proffered, and we find nowhere in the transcript that the Judge curtailed his testimony.  Indeed, he
kept the record open for four months after the hearing, over Department Counsel’s objection.  Tr.
pp. 84-86, 91.  Applicant appears to be arguing that the Judge should have extended more weight
to his testimony that was apparently the case, which is not the same thing as demonstrating the Judge
prevented him from submitting evidence itself.  The Judge did not limit Applicant’s ability to
present his case in mitigation.
Applicant contends that the Judge’s decision was arbitrary, capricious, or contrary to law. 
In making this argument, he asserts that the Judge erred in concluding that his circumstances raised
security concerns under Guideline F.  In addition to his claim that the Judge relied upon the wrong
set of guidelines, which we have already rejected, he contends that his financial problems were
unfortunate but did not raise security concerns in the absence of any “aggravating factors.”  Appeal
Brief at 12.  There is no support for Applicant’s argument about aggravating factors.  The Directive
imposes no such requirement.  To the contrary, the Directive provides that delinquent debts
themselves can raise concerns about an applicant’s willingness to abide by rules and regulations,
thereby giving rise to questions about his or her ability to protect classified information.  Directive,
Encl. 2, App. A ¶ 18.; ISCR Case No. 15-01737 at 3 (App. Bd. Feb. 14,  2017).  Indeed, the
3Applicant’s argument is predicated, in part, on the premise that failure to pay taxes would not have been
included in Statements of Reasons under the old guidelines.  This premise is mistaken.  For two examples of cases under
those guidelines in which failure to pay taxes was a security issue (without a failure to file component) see ISCR Case
09-07064 (App. Bd. Nov. 18, 2011) and ISCR Case No. 14-05489 (App. Bd. Jan. 11, 2016).
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Directive presumes that there is a nexus between admitted or proved conduct or circumstances under
any of the guidelines and an applicant’s eligibility for access to classified information.  See, e.g.,
ISCR Case No. 17-02595 at 3 (App. Bd. Jul. 31, 2018).  Applicant’s history of delinquent debt and
in particular his debt to the IRS are sufficient to raise security concerns, thereby shifting the burden
of production to Applicant.  The balance of Applicant’s brief is, in effect, a challenge to the Judge’s
weighing of the evidence.  However, an ability to argue for a different interpretation of the record
is not sufficient to show that the Judge weighed the evidence in a manner that was arbitrary,
capricious, or contrary to law.    See, e.g., ISCR Case No. 17-02463 at 2 (App. Bd. Sep. 10, 2018). 
In support of his arguments, Applicant refers to the “imminent threat to the national interest”
standard set forth in Directive ¶ 6.4,4 which applies to the suspension of a previously adjudicated
security clearance pending a final clearance decision.  Applicant’s reliance on ¶ 6.4 is misplaced. 
First, his security clearance was not suspended under ¶ 6.4.  Second, the “imminent threat to the
national security” standard is for use by the appropriate DoD official in reviewing a proposed
security clearance suspension and not for use by Judges in adjudicating security clearance eligibility. 
Third, the Judge’s decision in this case is an integral part of and, depending on the circumstances,
could constitute the final clearance decision.5  See, Directive ¶ E3.1.36.  See also, ISCR Case No.
14-05238 at 2 (App. Bd. Jan. 13, 2016) for the proposition that ¶ 6.4 is limited in scope and that as
a general matter the Government does not have to prove a “‘clear and present danger’ to national
security” before it can deny an applicant a clearance.  
The Judge examined the relevant evidence and articulated a satisfactory explanation for the
decision.  The decision is sustainable on this record.  “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).  See also Directive, Encl. 2, App. A ¶ 2(b):  “Any
doubt concerning personnel being considered for national security eligibility will be resolved in
favor of the national security.”
4 In his argument Applicant refers to ¶ 6.4 and uses the phrase “imminent threat to national security” instead
of “imminent threat to the national interest” as set forth in that provision.   Appeal Brief at 13.  
5 Because Applicant appealed the Judge’s decision, our decision constitutes the final clearance decision.  
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Order
The Decision is AFFIRMED.    
Signed: Michael Ra’anan              
Michael Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: James E. Moody               
James E. Moody
Administrative Judge
Member, Appeal Board
Signed: James F. Duffy                  
James F. Duffy
Administrative Judge
Member, Appeal Board
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