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   DEPARTMENT OF DEFENSE 
 DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: )
)
) ISCR Case No. 18-00685 
) 
Applicant for Security Clearance ) 
Appearances 
For Government: Gatha Manns, Esq., Department Counsel 
For Applicant: Pro se 
___________ 
Decision 
___________ 
HARVEY, Mark, Administrative Judge: 
Applicant has a history of criminal behavior and other conduct of security concern. 
He owes about $48,000 in delinquent child support. He filed his federal and state tax 
returns for tax years 2016 and 2017 after he received the statement of reasons (SOR). 
Guidelines D (sexual behavior), J (criminal conduct), F (financial considerations), and E 
(personal conduct) security concerns are not mitigated. Access to classified information 
is denied.      
Statement of the Case 
On May 13, 2015, Applicant completed and signed a Questionnaire for National 
Security Positions (SF 86) or security clearance application (SCA). (Government Exhibit 
(GE) 1) On May 21, 2018, the Department of Defense (DOD) Consolidated Adjudications 
Facility (CAF) issued an SOR to Applicant pursuant to Executive Order (Exec. Or.) 10865, 
Safeguarding Classified Information within Industry, February 20, 1960; DOD Directive 
5220.6, and Security Executive Agent Directive 4, establishing in Appendix A the National 
Security Adjudicative Guidelines for Determining Eligibility for Access to Classified 
Information or Eligibility to Hold a Sensitive Position (AGs), effective June 8, 2017. 
(Hearing Exhibit (HE) 2) 
The SOR detailed reasons why the DOD CAF did not find under the Directive that 
it is clearly consistent with the national interest to grant or continue a security clearance 
for him, and recommended referral to an administrative judge to determine whether a 
02/08/2019
 
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clearance should be granted, continued, denied, or revoked. (HE 2) Specifically, the SOR 
set forth security concerns arising under Guidelines D, J, F, and E.  
 
On June 21, 2018, Applicant responded to the SOR, and he requested a hearing. 
(HE 3) On July 31, 2018, Department Counsel was ready to proceed. On September 27, 
2018, the case was assigned to me. On October 10, 2018, the Defense Office of Hearings 
and Appeals (DOHA) issued a notice of hearing, setting the hearing for November 15, 
2018. (HE 1) The hearing was held as scheduled.  
  
Department Counsel offered 11 exhibits; there were no objections to the 
documents; and they were admitted into evidence. (Tr. 19-21; Government Exhibit (GE) 
1-11) Applicant did not offer any exhibits at his hearing. (Tr. 16) I received emails and 
documents after Applicant’s hearing, which were admitted as Applicant Exhibits (AE) A-
AE I. On December 7, 2018, DOHA received a copy of the transcript of the hearing.  
 
Findings of Fact 
 
 In Applicant’s SOR response, he admitted the allegations in SOR ¶¶ 1.b, 1.c, 2.a, 
2.b, 3.a, 3.c, and 4.a. He also provided extenuating and mitigating information. Applicant’s 
admissions are accepted as findings of fact.  
 
Applicant is 48 years old, and he is employed by a defense contractor as a cyber-
security specialist and penetration tester. (Tr. 6, 24; GE 1) He has worked in this area for 
the defense contractor for three years. (Tr. 7) In 1988, he graduated from high school. 
(Tr. 6, 24) In 2005, he graduated from a university and received a bachelor’s degree; 
however, the physical diploma was lost, and despite “back and forth” between Applicant 
and the university, he was unable to get another copy of the diploma. (Tr. 27-28) In 
December 2011, he received a technical information technology certification. (Tr. 25) He 
intends to complete another “year or so” of classes so he can receive another bachelor’s 
degree. (Tr. 6; AE B; AE H) In 2007, he received an on-line master’s degree; however, 
he later discovered the degree program was fraudulent, and his degree was “nullified.” 
(Tr. 6, 30-32; AE A) He established a cyber-security business in 2010, and he received 
several awards. (Tr. 112)  
 
Applicant served in the Army from August 1988 to August 1991. (Tr. 7) His Army 
military occupational specialty (MOS) was encrypted signal interceptor. (Tr. 7-8) While he 
was in the Army, he held a top secret clearance with access to sensitive compartmented 
information. (Tr. 8) He served in Panama during Operation Just Cause. (Tr. 113) In 1991, 
his security clearance was revoked. (Tr. 8)  
 
Applicant has never married. (Tr. 32) His four children are ages 16, 17, 20, and 21. 
(Tr. 32-33, 109) In November 2018, his 22-year-old son was shot and killed. (Tr. 17, 33)   
 
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Sexual Behavior 
 
SOR ¶ 1.a alleges in April 1991, Applicant received nonjudicial punishment (NJP) 
for four acts of voyeurism, in violation of Article 134, Uniform Code of Military Justice 
(UCMJ). A military police report indicates a person generally fitting Applicant’s description 
was inside the female shower area looking at female soldiers coming out of or inside the 
showers on four occasions from December 26, 1990, to January 17, 1991. (GE 11 at 5-
7) He received company grade NJP of forfeiture of 7 days of pay, reduction from specialisr 
to private first class, 14 days of restriction, and 14 days of extra duty. (GE 11 at 4) In May 
1991, Applicant wrote a statement addressed to his company commander in which he 
admitted he had a problem with voyeurism; he traced his problem to sexual abuse when 
he was a child and unresolved anger; he wanted therapy; and he requested a discharge 
from the Army. (GE 11 at 2-3) At his hearing, he said he was outside someone’s room 
looking in, and he viewed people inappropriately on two or three occasions. (Tr. 58) He 
said he was caught each time he did it. (Tr. 58) He received some therapy before he was 
discharged from the Army. (Tr. 60) In August 1991, he received a general discharge under 
honorable conditions for misconduct. After he was discharged from the Army and 
continuing until the middle of 1993, he received therapy to recognize and resist triggers 
for voyeurism. (Tr. 62) The triggers to his desire for voyeurism were emotional extremes 
such as becoming too angry, hungry, or lonely. (Tr. 62) 
 
SOR ¶ 1.b alleges in April 1994, Applicant was arrested and charged with four 
counts of aggravated sexual battery. Applicant said that because he was angry about his 
life, particularly his lack of financial success and low-paying employment, he “graduated” 
from voyeurism to “frottage.” (Tr. 63) According to the Merriam-Webster Dictionary, 
frottage is “the act of obtaining sexual stimulation by rubbing against a person or object.” 
https://www.merriam-webster.com/dictionary/frottage. Applicant said he was in a club, 
and someone touched a woman inappropriately on her rear. (Tr. 64) He may have 
bumped her. (Tr. 64) She accused Applicant of touching her inappropriately, and he was 
arrested and charged with sexual assault. (Tr. 64) Applicant pleaded guilty to sexual 
assault. (Tr. 64) In his SOR response, he said, “Against my own desire, I touched a 
woman inappropriately in a public place.” At his hearing, he denied that he touched her 
inappropriately. (Tr. 65) He subsequently admitted he touched one woman 
inappropriately; however, he denied that he touched the other three women. (Tr. 66) He 
said that “[o]ut of camaraderie, they all said that I did.” (Tr. 66)1 He conceded that he 
pleaded guilty to four counts of sexual assault on four women. (Tr. 67-68) He claimed he 
only touched one woman, and the touching was unintentional and not sexual. (Tr. 67-68) 
He pleaded guilty because the prosecutor reduced the four felony-level aggravated 
sexual battery charges to four misdemeanor-level sexual battery charges. (Tr. 68-69) He 
                                            
1 In his August 1, 2016 Officer of Personnel Management personal subject interview (OPM PSI), 
Applicant said in 1992 or 1995, he was walking on the street and touched a woman’s breast. (GE 2 at 15) 
He did not realize he touched the woman’s breast. (GE 2 at 15) In his November 15, 2016 OPM PSI, he 
said that the act was not intentional or conscious. (GE 2 at 21) He was arrested for sexual assault. (GE 2 
at 15) A 1992 police report indicates Applicant was riding a bicycle and he reached out and grabbed a 
woman’s breast. (GE 3) He was charged with sexual assault. (GE 3) The disposition of this allegation is 
unknown. It was not addressed during his hearing, and it was not alleged in the statement of reasons (SOR). 
No adverse inference is made against Applicant because of this allegation.  
 
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served 30 days for each misdemeanor-level conviction and paid a substantial fine 
(between $1,000 and $2,000). (Tr. 69-70) He was on probation for three years. (Tr. 70)          
 
SOR ¶ 1.c alleges in September 2005, Applicant was arrested and charged with 
solicitation of prostitution. Applicant went with an undercover police woman to a motel, 
and when he arrived, some police came out of the bathroom and arrested him. (Tr. 74-
76) He was found guilty of soliciting a prostitute and fined $335. (Tr. 75) He denied that 
he offered the undercover police woman any money. (Tr. 75-76) The police report states, 
“The subject wanted to commit a sex act for $30.00.” (GE 5 at 3) He said he pleaded 
guilty without admitting that he offered her money for sex. (Tr. 75) 
 
Criminal Conduct 
 
SOR ¶ 2.a cross-alleges the conduct in SOR ¶ 1. SOR ¶ 2.b alleges that in 
December 2005, Applicant was arrested and charged with petit larceny. (GE 4) An 
employee of a drug store said Applicant picked up two items and walked out of the store. 
(Tr. 80) The police accused Applicant of stealing. (Tr. 78) Applicant pleaded not guilty 
and told the judge he purchased the items earlier from a different store. (Tr. 79) The judge 
found him guilty of petty larceny, and Applicant believed he was convicted because he 
was unable to produce the receipts for the items. (Tr. 79) He was sentenced to 12 months 
in jail with 10 months suspended. (Tr. 81) 
 
SOR ¶ 2.c alleges that in July 2010, Applicant was arrested and charged with petty 
theft. Applicant said he was in a store and someone left their wallet at the register. (Tr. 
82) Applicant took the wallet and attempted to return it to its owner who was outside the 
store. (Tr. 83) The wallet was returned to the owner. (Tr. 83) The owner said $200 was 
missing from his wallet. (Tr. 83) Applicant was convicted of “petty larceny.” (Tr. 84-85) He 
received a $200 fine and was required to pay $150 in court costs. (Tr. 84)  
 
Financial Considerations 
 
 Applicant was unemployed from August 2012, to June 2014, and from November 
2014 to December 2015. (Tr. 45-46, 49) He lived in a homeless shelter for two months, 
and he lived in his car for a time. (Tr. 48-49) He used the unemployment time to burnish 
his credentials and earn information technology certifications. (Tr. 46) He recently 
received several salary increases, and his current salary is around $104,000. (Tr. 45, 100) 
He receives 30 percent disability pay ($497 monthly) from the Department of Veterans 
Affairs. (Tr. 108) 
 
Applicant’s SOR alleges the following financial issues: 
 
SOR ¶ 3.a alleges his student loan for $2,272 was charged off. Applicant is 
currently enrolled in college, and he believed the correct loan status should be deferred. 
(Tr. 40) He has about $12,000 in student loans that are not deferred because he “took a 
pause at school.” (Tr. 73) He owes approximately $46,000 in student loans and they are 
in deferment because he has been enrolled in a bachelor’s degree program since 2016. 
(AE B) This debt is mitigated. 
 
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SOR ¶ 3.b alleges a collection debt for $350. Applicant was unaware of the source 
of the debt, and he used a credit repair company to dispute his responsibility for it. (Tr. 
42-43) This is the only SOR debt in collections. Applicant is credited with mitigating this 
debt. 
 
SOR ¶ 3.c alleges a delinquent child-support debt for $55,584 owed to a state 
department of social services. Applicant said he started paying child support in 1996 or 
1997. (Tr. 36) He said he consistently made child-support payments for the past three 
years, and whenever possible he pays extra to reduce the arrearage. (Tr. 87) In his 
November 15, 2016 Officer of Personnel Management personal subject interview, 
Applicant said his child-support arrearage was $46,715. (GE 2 at 21) His current 
arrearage is about $48,000. (Tr. 72) In October 2018, he owed the following amounts for 
four children: $22,613; $9,988; $3,900; and $11,728, for a total of $48,229. (Tr. 71; AE 
G) He currently pays $475 through a wage withholding or garnishment2 for one child and 
$475 for his arrearage or a total of $950 per two-week pay period. (Tr. 36-37, 100) He 
said this amounts to $1,400 or $1,400 monthly. (Tr. 100) He said he pays extra each 
month in addition to the wage withholding. (Tr. 38) His November 16, 2018 child-support 
statement indicated he paid $760. (AE G) In June 2018, he ended the garnishment and 
is voluntarily paying his child-support debt. (AE A; AE G) This debt is not mitigated. 
 
Applicant was unsure when he filed his federal income tax returns for tax years 
2014 and 2015. (Tr. 114) He said he had not “completely” filed tax returns for the last five 
years. (Tr. 113, 115) He said, “I have not filed taxes for 2017 yet, but I have filed taxes 
for ’15 and ’14.” (Tr. 114) He said he filed his 2016 tax return. (Tr. 114) I asked him to 
provide his Internal Revenue Service Form 1040s for the previous three years. (Tr. 116) 
Applicant did not object to Department Counsel’s proposed amendment of the SOR to 
add SOR ¶¶ 3.d through 3.g.  
 
SOR ¶¶ 3.d and 3.e allege Applicant failed to timely file his federal income tax 
returns for tax years 2016 and 2017. (Tr. 117) SOR ¶¶ 3.f and 3.g allege Applicant failed 
to timely file his state income tax return for tax years 2016 and 2017. (Tr. 117) 
 
After Applicant’s hearing, he provided documentation depicted in the following 
table for tax years 2013, 2014, 2016, and 2017 (not 2015). 
 
                                            
2 Of course, Applicant loses some mitigating credit because his child support payments were made 
through garnishment of his salary even though his opportunity to establish a payment plan may have been 
limited at times because of unemployment, lack of income, and other financial commitments. Payment of a 
debt “though garnishment rather than a voluntary effort diminishes its mitigating force.” Compare ISCR 
Case No. 08-06058 at 4 (App. Bd. Aug. 26, 2010) with ISCR Case No. 04-07360 at 2-3 (App. Bd. Sept. 26, 
2006) (payment of two of four debts through garnishment did not bar mitigation of financial considerations 
concerns). See also ISCR Case No. 09-05700 at 4 (App. Bd. Feb. 24, 2011) (garnished payments towards 
delinquent tax debts is not mitigating information in light of other factors); ISCR Case No. 08-06058 at 6 
(App. Bd. Sep. 21, 2009) (remanding the case to the administrative judge and stating when addressing an 
Internal Revenue Service garnishment, “On its face, satisfaction of a debt through the involuntary 
establishment of a creditor’s garnishment is not the same as, or similar to, a good-faith initiation of 
repayment by the debtor.”). 
 
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Tax Year Date Filed   Adjusted Gross 
In come 
Federal Income 
Tax Refund 
Source 
2013 Dec. 14, 2018 $7,4813 $209 AE C, F 
2014 Dec. 14, 2018 $50,311 $2,165 AE D, F 
2016 Dec. 14, 2018 $66,935  AE F 
2017 Dec. 14, 2018 $84,804 $1,007 AE F 
  
Applicant’s state and federal income tax returns for tax years 2013, 2014, 2016, 
and 2017 did not indicate that he owed any federal or state income taxes. (AE C-AE F) 
Applicant said he did not need to file a tax return for tax year 2012 because his income 
was too low, and he said his tax preparation service said he did not need to file tax returns 
if it was more than six years ago. (AE A) If the IRS wants to pursue tax evasion or related 
charges, it must do this within six years from the date the unfiled return was due. This six-
year time limit does not remove the requirement to file tax returns prior to 2012. No 
adverse inference is made about whether Applicant has failed to file or timely file tax 
returns other than those for tax years 2014, 2016, and 2017.   
 
Personal Conduct 
 
SOR ¶ 4.a alleges that Applicant was terminated from his employment in January 
2016 for viewing inappropriate material on a computer while at work. (Tr. 51-57) While at 
work, he was on a website where women do “silly things” such as “twerking” or “shaking 
their butts.” (Tr. 53) He said not all of the videos on the website are sexually oriented. (Tr. 
55) He was working at the front desk of a hotel, and another employee saw the 
inappropriate video and reported him to management. (Tr. 53) He said the problem was 
he walked away from the desk, and he failed to close out the video. (Tr. 53) The time he 
was caught on the website at work was not the first time he viewed material from that 
website at work. (Tr. 56-57) SOR ¶ 4.b cross-alleges the conduct alleged in SOR ¶¶ 1 
and 2. 
 
Character Evidence 
 
Applicant provided 19 pages of letters and emails positively describing his work 
and contributions to his community from 1996 to 2011. (AE I) The statements laud his 
integrity, responsibility, dependability, and intelligence. (AE I) He worked numerous hours 
as a volunteer and often helped others with computer problems. (AE H) He presented 
certificates and diplomas, dated from 1996 to 2015, documenting his training and 
education accomplishments.   
 
  
                                            
3 The income threshold for filing his 2013 tax return was $10,000 (filing status single under age 65), 
and Applicant was not required to file a tax return for tax year 2013. See IRS Publication 501, Cat. No. 
15000U, Exemptions, Standard Deduction, and Filing Information For use in preparing 2013 Returns at 2 
(Dec 03, 2013), https://www.irs.gov/pub/irs-prior/p501--2013.pdf. 
 
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Policies 
 
The U.S. Supreme Court has recognized the substantial discretion of the Executive 
Branch in regulating access to information pertaining to national security emphasizing, 
“no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 
518, 528 (1988). As Commander in Chief, the President has the authority to control 
access to information bearing on national security and to determine whether an individual 
is sufficiently trustworthy to have access to such information.” Id. at 527. The President 
has authorized the Secretary of Defense or his designee to grant applicant’s eligibility for 
access to classified information “only upon a finding that it is clearly consistent with the 
national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within 
Industry § 2 (Feb. 20, 1960), as amended.  
 
Eligibility for a security clearance is predicated upon the applicant meeting the 
criteria contained in the revised adjudicative guidelines. These guidelines are not 
inflexible rules of law. Instead, recognizing the complexities of human behavior, these 
guidelines are applied in conjunction with an evaluation of the whole person. An 
administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense 
decision. An administrative judge must consider all available, reliable information about 
the person, past and present, favorable and unfavorable.  
 
The Government reposes a high degree of trust and confidence in persons with 
access to classified information. This relationship transcends normal duty hours and 
endures throughout off-duty hours. 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 
about potential, rather than actual, risk of compromise of classified information. Clearance 
decisions must be “in terms of the national interest and shall in no sense be a 
determination as to the loyalty of the applicant concerned.” See Exec. Or. 10865 § 7. 
Thus, nothing should be construed to suggest that I have based this decision, in whole or 
in part, on any express or implied determination about applicant’s allegiance, loyalty, or 
patriotism. It is merely an indication the applicant has not met the strict guidelines the 
President and the Secretary of Defense have established for issuing a clearance.  
  
 Initially, the Government must establish, by substantial evidence, conditions in the 
personal or professional history of the applicant that may disqualify the applicant from 
being eligible for access to classified information. The Government has the burden of 
establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. 
“Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. 
Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines 
presume a nexus or rational connection between proven conduct under any of the criteria 
listed therein and an applicant’s security suitability. See ISCR Case No. 95-0611 at 2 
(App. Bd. May 2, 1996). 
 
Once the Government establishes a disqualifying condition by substantial 
evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the 
facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it 
 
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is clearly consistent with the national interest to grant or continue his or her security 
clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). The burden of 
disproving a mitigating condition never shifts to the Government. See ISCR Case No. 02-
31154 at 5 (App. Bd. Sep. 22, 2005). “[S]ecurity clearance determinations should err, if 
they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b). 
 
Analysis 
   
Sexual Behavior 
 
AG ¶ 12 describes the security concern raised by sexual behavior as follows: 
 
Sexual behavior that involves a criminal offense, indicates a personality or 
emotional disorder, reflects lack of judgment or discretion, or which may 
subject the individual to undue influence or coercion, exploitation, or duress 
can raise questions about an individual's reliability, trustworthiness and 
ability to protect classified information. No adverse inference concerning the 
standards in this Guideline may be raised solely on the basis of the sexual 
orientation of the individual. 
 
AG ¶ 13 provides conditions that could raise a security concern and may be 
disqualifying in this case including: 
 
(a) sexual behavior of a criminal nature, whether or not the individual has 
been prosecuted; 
 
(c) sexual behavior that causes an individual to be vulnerable to coercion, 
exploitation, or duress; and 
 
(d) sexual behavior of a public nature and/or that reflects lack of discretion 
or judgment. 
 
In 1991, while Applicant was in the Army, he engaged in four acts of voyeurism, 
when he viewed female soldiers in showers. He received nonjudicial punishment and a 
general discharge under honorable conditions for misconduct. In 1994, Applicant touched 
four women in an inappropriate sexual manner. He was arrested and charged with four 
counts of aggravated sexual battery. He was convicted of four counts of misdemeanor-
level sexual battery.  In 2005, he solicited a sex act for money from an undercover police 
woman, and he was convicted of solicitation of prostitution. AG ¶¶ 13(a), 13(c), and 13(d) 
are established and consideration of potential mitigating conditions is required. 
  
AG ¶ 14 describes four conditions that could mitigate security concerns including: 
 
(a) the behavior occurred prior to or during adolescence and there is no 
evidence of subsequent conduct of a similar nature; 
 
 
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(b) the sexual behavior happened so long ago, so infrequently, or under 
such unusual circumstances, that it is unlikely to recur and does not cast 
doubt on the individual's current reliability, trustworthiness, or good 
judgment; 
 
(c) the behavior no longer serves as a basis for coercion, exploitation, or 
duress; and  
 
(d) the sexual behavior is strictly private, consensual, and discreet. 
 
The Appeal Board concisely explained Applicant’s responsibility for proving the 
applicability of mitigating conditions as follows:  
 
Once a concern arises regarding an Applicant’s security clearance 
eligibility, there is a strong presumption against the grant or maintenance of 
a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th 
Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government 
presents evidence raising security concerns, the burden shifts to the 
applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The 
standard applicable in security clearance decisions is that articulated in 
Egan, supra. “Any doubt concerning personnel being considered for access 
to classified information will be resolved in favor of the national security.” 
Directive, Enclosure 2 ¶ 2(b).  
 
ISCR Case No. 10-04641 at 4 (App. Bd. Sept. 24, 2013).  
 
None of the mitigating conditions fully apply; however, AG ¶¶ 14(b) and 14(c) 
partially apply. Applicant received some therapy in 1992 and 1993. He has a good 
understanding of emotions that may trigger sex crimes. His most recent conviction for a 
sex crime was in 2005, and his sex crimes are not recent. He provided multiple character 
letters attesting to his good behavior and contributions to his employer and community. 
Desire for self-improvement is exemplified by the numerous certifications and diplomas 
he earned. His good work performance is shown by a series of raises he has received 
from his current employer.  
 
The evidence against mitigation is more persuasive. Additional sexual crimes 
occurred after he received therapy. There is a lingering concern that future criminal sexual 
behavior will occur because he committed multiple sexual offenses, and he failed to 
accept full responsibility at his hearing for his criminal conduct. He committed four 
voyeurism criminal offenses against female soldiers when he was in the Army, and after 
he left the Army, he received five misdemeanor-level convictions in civilian court (four 
sexual assaults and one solicitation of prostitution crimes). He essentially claimed that he 
was not criminally responsible for any of the offenses of which he was convicted. Sexual 
behavior security concerns are not mitigated.  
 
  
 
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Criminal Conduct 
 
AG ¶ 30 describes the security concern about criminal conduct, “Criminal activity 
creates doubt about a person’s judgment, reliability, and trustworthiness. By its very 
nature, it calls into question a person’s ability or willingness to comply with laws, rules, 
and regulations.” 
 
AG ¶ 31 describes two conditions that could raise a security concern and may be 
disqualifying in this case: 
 
(a) a pattern of minor offenses, any one of which on its own would be 
unlikely to affect a national security eligibility decision, but which in 
combination cast doubt on the individual's judgment, reliability, or 
trustworthiness; and 
 
(b) evidence (including, but not limited to, a credible allegation, an 
admission, and matters of official record) of criminal conduct, regardless of 
whether the individual was formally charged, prosecuted, or convicted.  
 
AG ¶¶ 31(a) and 31(b) are established for the reasons stated in the previous 
section. In addition, Applicant committed thefts in 2005 and 2010, and he was convicted 
of “petty larceny.”    
 
AG ¶ 32 lists four conditions that could mitigate security concerns including: 
 
(a) so much time has elapsed since the criminal behavior happened, or it 
happened under such unusual circumstances, that it is unlikely to recur and 
does not cast doubt on the individual's reliability, trustworthiness, or good 
judgment; 
 
(b) the individual was pressured or coerced into committing the act and 
those pressures are no longer present in the person's life; 
 
(c) no reliable evidence to support that the individual committed the offense; 
and 
 
(d) there is evidence of successful rehabilitation; including, but not limited 
to, the passage of time without recurrence of criminal activity, restitution, 
compliance with the terms of parole or probation, job training or higher 
education, good employment record, or constructive community 
involvement. 
 
Applicant receives partial mitigation credit under AG ¶¶ 32(a) and 32(d) for the 
same reasons that AG ¶¶ 14(b) and 14(c) in the previous section partially apply. Criminal 
conduct security concerns are not mitigated as explained in the sexual behavior section. 
 
  
 
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Personal Conduct 
 
AG ¶ 15 describes the security concern about personal conduct as follows: 
 
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.  
 
AG ¶ 16 lists conditions that could raise a security concern and may be 
disqualifying as follows: 
 
(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. 
 
AG ¶¶ 16(d) and 16(e) are established for the reasons stated in the previous sexual 
behavior and criminal conduct sections. In addition, Applicant viewed inappropriate 
material on a computer at work and was terminated from his employment.     
 
  
 
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AG ¶ 17 lists conditions that could mitigate security concerns in this case as 
follows: 
 
(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; and 
 
(f) the information was unsubstantiated or from a source of questionable 
reliability. 
 
Applicant receives partial mitigation credit under AG ¶¶ 17(c), 17(d), and 17(e) for 
the same reasons that AG ¶¶ 14(b) and 14(c) in the sexual behavior section partially 
apply. Personal conduct security concerns are not mitigated as explained in the sexual 
behavior section. 
 
Financial Considerations 
 
AG ¶ 18 articulates the security concern relating to financial problems:  
 
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.  
 
AG ¶ 19 provides three disqualifying conditions that could raise a security concern 
and may be disqualifying in this case: “(a) inability or unwillingness to satisfy debts”; “(c) 
a history of not meeting financial obligations”; and “(g) failure to file annual Federal, state, 
or local income tax returns as required . . . .” Applicant admitted that he failed to timely 
file his federal and state tax returns for tax years 2016 and 2017.  He owes about $48,000 
in delinquent child support. The Government established the disqualifying conditions in 
AG ¶¶ 19(a), 19(c), and 19(g) requiring additional inquiry about the possible applicability 
of mitigating conditions.  
 
  
 
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Seven mitigating conditions under AG ¶ 20 are potentially applicable: 
  
(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, or a death, divorce or separation), and the 
individual acted responsibly under the circumstances;  
 
(c) the person has received or is receiving counseling for the problem and/or 
there are clear indications that the problem is being resolved or is under 
control; 
 
(d) the individual initiated a good-faith effort to repay overdue creditors or 
otherwise resolve debts;4   
 
(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 
 
(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. 
 
No mitigating conditions fully apply; however, Applicant presented some mitigating 
information. He had variations in his income, and periods of unemployment after leaving 
the Army. These unusual circumstances were beyond Applicant’s control and caused or 
contributed to Applicant’s financial problems. In June 2018, he ended the garnishment of 
                                            
4The Appeal Board has previously explained what constitutes a “good faith” effort to repay overdue 
creditors or otherwise resolve debts:  
 
In order to qualify for application of [the “good faith” mitigating condition], an applicant must 
present evidence showing either a good-faith effort to repay overdue creditors or some 
other good-faith action aimed at resolving the applicant’s debts. The Directive does 
not define the term “good-faith.” However, the Board has indicated that the concept of 
good-faith “requires a showing that a person acts in a way that shows reasonableness, 
prudence, honesty, and adherence to duty or obligation.” Accordingly, an applicant must 
do more than merely show that he or she relied on a legally available option (such as 
bankruptcy) in order to claim the benefit of [the “good faith” mitigating condition]. 
 
(internal citation and footnote omitted) ISCR Case No. 02-30304 at 3 (App. Bd. Apr. 20, 2004) (quoting 
ISCR Case No. 99-9020 at 5-6 (App. Bd. June 4, 2001)).  
  
 
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his pay for child support, and in the last three years, he had decreased his child-support 
debt arrearage by several thousand dollars. He is credited with mitigation of the debts in 
SOR ¶¶ 3.a through 3.c. Applicant receives significant mitigation under AG ¶ 20(g) 
because there is no evidence that he owes any federal or state income taxes, and he filed 
his overdue tax returns for tax years 2013, 2014, 2016, and 2017. His income over the 
last three years has increased, and his annual income is now around $104,000.    
 
Applicant failed to timely file his federal and state income tax returns for tax years 
2014, 2016, and 2017. 5 The DOHA Appeal Board has commented: 
 
Failure to file tax returns suggests that an applicant has a problem with 
complying with well-established governmental rules and systems. Voluntary 
compliance with such rules and systems is essential for protecting classified 
information. ISCR Case No. 01-05340 at 3 (App. Bd. Dec. 20, 2002). As we 
have noted in the past, a clearance adjudication is not directed at collecting 
debts. See, e.g., ISCR Case No. 07-08049 at 5 (App. Bd. Jul. 22, 2008). By 
the same token, neither is it directed toward inducing an applicant to file tax 
returns. Rather, it is a proceeding aimed at evaluating an applicant’s 
judgment and reliability. Id. A person who fails repeatedly to fulfill his or her 
legal obligations does not demonstrate the high degree of good judgment 
and reliability required of those granted access to classified information. 
See, e.g., ISCR Case No. 14-01894 at 5 (App. Bd. Aug. 18, 2015). See 
Cafeteria & Restaurant Workers Union Local 473 v. McElroy, 284 F.2d 173, 
183 (D.C. Cir. 1960), aff’d, 367 U.S. 886 (1961). 
 
ISCR Case No. 14-04437 at 3 (App. Bd. Apr. 15, 2016). See ISCR Case No. 14-05476 
at 5 (App. Bd. Mar. 25, 2016) (citing ISCR Case No. 01-05340 at 3 (App. Bd. Dec. 20, 
2002)). ISCR Case No. 14-01894 at 4-5 (App. Bd. Aug. 18, 2015). The Appeal Board 
clarified that even in instances where an “[a]pplicant has purportedly corrected [the 
applicant’s] federal tax problem, and the fact that [applicant] is now motivated to prevent 
such problems in the future, does not preclude careful consideration of [a]pplicant’s 
security worthiness in light of [applicant’s] longstanding prior behavior evidencing 
irresponsibility” including a failure to timely file federal income tax returns. See ISCR Case 
                                            
5 Applicant’s SOR does not allege that he did not timely file his federal and state tax returns for tax 
year 2014. In ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006), the Appeal Board listed five 
circumstances in which conduct not alleged in an SOR may be considered stating: 
  
(a) to assess an applicant’s credibility; (b) to evaluate an applicant’s evidence of 
extenuation, mitigation, or changed circumstances; (c) to consider whether an applicant 
has demonstrated successful rehabilitation; (d) to decide whether a particular provision of 
the Adjudicative Guidelines is applicable; or (e) to provide evidence for whole person 
analysis under Directive Section 6.3.  
 
Id. (citing ISCR Case No. 02-07218 at 3 (App. Bd. Mar. 15, 2004); ISCR Case No. 00-0633 at 3 (App. Bd. 
Oct. 24, 2003)). See also ISCR Case No. 12-09719 at 3 (App. Bd. April 6, 2016) (citing ISCR Case No. 14-
00151 at 3, n. 1 (App. Bd. Sept. 12, 2014); ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006)).  
Applicant’s failure to timely file his state and federal tax returns for tax year 2014 will not be considered 
except for the five purposes listed above.  
 
15 
                                         
 
No. 15-01031 at 3 and note 3 (App. Bd. June 15, 2016) (characterizing “no harm, no foul” 
approach to an Applicant’s course of conduct and employed an “all’s well that ends well” 
analysis as inadequate to support approval of access to classified information with focus 
on timing of filing of tax returns after receipt of the SOR).   
 
In conclusion, Applicant receives substantial credit for getting his federal and state 
tax returns filed in December 2018, and establishing he does not owe any taxes. 
However, he failed to timely file his tax returns for 2014, 2016, and 2017. Financial 
considerations concerns are not mitigated.  
 
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 
conduct and all the circumstances. The administrative judge should consider the nine 
adjudicative process factors listed at AG ¶ 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.  
 
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 have incorporated my comments under 
Guidelines D, J, F, and E in my whole-person analysis. Some of the factors in AG ¶ 2(a) 
were addressed under those guidelines, but some warrant additional comment.  
 
Applicant is 48 years old, and he has been employed by a defense contractor as 
a cyber-security specialist and penetration tester for three years. In 2005, he graduated 
from a university and received a bachelor’s degree. In December 2011, he received a 
technical information technology certification. He intends to complete another “year or so” 
of classes so he can receive another bachelor’s degree. In 2007, he received an on-line 
master’s degree; however, he later discovered the degree program was fraudulent, and 
his degree was “nullified.” He established a cyber-security business in 2010, and he 
received several awards.  
 
Letters and emails positively describe Applicant’s work and contributions to his 
community. He worked numerous hours as a volunteer and often helped others with 
computer problems. He diligently endeavored to improve his knowledge and credentials.   
 
Applicant served in the Army from August 1988 to August 1991. His Army MOS 
was encrypted signal interceptor. While he was in the Army, he held a top secret 
 
16 
                                         
 
clearance with access to sensitive compartmented information. He served in Panama 
during Operation Just Cause.    
 
Applicant’s history of failing to timely file his federal and state income tax returns 
when due raises unresolved financial considerations security concerns.6 When an issue 
involving taxes is involved, an administrative judge is required to consider how long an 
applicant waits to file their tax returns, whether the IRS generates the tax returns, and 
how long the applicant waits after a tax debt arises to begin and complete making 
payments.7 It is a positive development that Applicant filed his federal and state tax 
returns for tax years 2013, 2014, 2016, and 2017. However, the primary financial 
considerations problem here is that Applicant did not timely file his federal and state tax 
returns for tax years 2014, 2016, and 2017 until December 2018.  
 
I have carefully applied the law, as set forth in Egan, Exec. Or. 10865, the Directive, 
and the AGs, to the facts and circumstances in the context of the whole person. Guideline 
D, J, F, and E security concerns are not mitigated. 
 
  
                                            
6 See ISCR Case No. 14-03358 at 3, 5 (App. Bd. Oct. 9, 2015) (reversing grant of a security 
clearance, noting $150,000 owed to the federal government, and stating “A security clearance represents 
an obligation to the Federal Government for the protection of national secrets. Accordingly failure to honor 
other obligations to the Government has a direct bearing on an applicant’s reliability, trustworthiness, and 
ability to protect classified information.”). 
 
7 See ISCR Case No. 14-05794 at 7 (App. Bd. July 7, 2016) (reversing grant of security clearance 
and stating, “His delay in taking action to resolve his tax deficiency for years and then taking action only 
after his security clearance was in jeopardy undercuts a determination that Applicant has rehabilitated 
himself and does not reflect the voluntary compliance of rules and regulations expected of someone 
entrusted with the nation’s secrets.”); ISCR Case No. 14-01894 at 2-6 (App. Bd. Aug. 18, 2015) (reversing 
grant of a security clearance, discussing lack of detailed corroboration of circumstances beyond applicant’s 
control adversely affecting finances, noting two tax liens totaling $175,000 and garnishment of Applicant’s 
wages, and emphasizing the applicant’s failure to timely file and pay taxes); ISCR Case No. 12-05053 at 4 
(App. Bd. Oct. 30, 2014) (reversing grant of a security clearance, noting not all tax returns filed, and 
insufficient discussion of Applicant’s efforts to resolve tax liens). More recently, in ISCR Case No. 14-05476 
(App. Bd. Mar. 25, 2016) the Appeal Board reversed a grant of a security clearance for a retired E-9 and 
cited applicant’s failure to timely file state tax returns for tax years 2010 through 2013 and federal returns 
for tax years 2010 through 2012. Before his hearing, he filed his tax returns and paid his tax debts except 
for $13,000, which was in an established payment plan. The Appeal Board highlighted his annual income 
of over $200,000 and discounted his non-tax expenses, contributions to DOD, and spouse’s medical 
problems. The Appeal Board emphasized “the allegations regarding his failure to file tax returns in the first 
place stating, it is well settled that failure to file tax returns suggest that an applicant has a problem with 
complying with well-established government rules and systems. Voluntary compliance with such rules and 
systems is essential for protecting classified information.” Id. at 5 (citing ISCR Case No. 01-05340 at 3 
(App. Bd. Dec. 20, 2002) (internal quotation marks and brackets omitted).  
 
17 
                                         
 
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 D:    AGAINST APPLICANT  
Subparagraphs 1.a through 1.c:   Against Applicant 
 
Paragraph 2, Guideline J:   AGAINST APPLICANT 
Subparagraphs 2.a through 2.c:  Against Applicant 
 
Paragraph 3, Guideline F:    AGAINST APPLICANT  
Subparagraphs 3.a through 3.c:   For Applicant 
Subparagraphs 3.d through 3.g:  Against Applicant 
 
Paragraph 4, Guideline E:    AGAINST APPLICANT  
Subparagraphs 4.a and 4.b:   Against Applicant 
 
Conclusion 
 
In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with national security to grant or continue Applicant’s eligibility for a 
security clearance. Eligibility for access to classified information is denied. 
 
 
 
_________________________ 
MARK HARVEY 
Administrative Judge