Here’s your weekly DOHA dose – a shot of security clearance appeal cases and their outcome. The Defense Office of Hearings and Appeals releases the results of their security clearance appeals cases. They’re one of the best insights into which clearance cases are granted or denied in the Department of Defense.
True or False: A security clearance holder isn’t responsible for debts incurred by a spouse.
When you fill out an SF-86 security clearance application, a number of references are requested, along with information about any spouses or cohabitants. The activities of a spouse – whether it’s drug use or gambling – can impact a security clearance, and may come up in the course of a background investigation.
A 2020 case put before DOHA makes two key points:
- Ignorance of finances doesn’t decrease culpability.
- Even if a Statement of Reasons (SOR) is overturned by a DOHA judge, that decision can still be appealed, and adverse decision made.
In the case in question, an applicant applied for a security clearance and received a SOR for Guideline F, financial considerations. The applicant requested a hearing, and at the hearing, the clearance was granted by the administrative judge. But that wasn’t the end of the story – department counsel raised this issue on appeal: “whether the Judge’s favorable decision ran contrary to the weight of the record evidence and, therefore, was arbitrary, capricious, or contrary to law.”
Your Spouse and Your Security Clearance
The heart of the applicant’s defense was related to the applicant’s argument his spouse was responsible for filing taxes. “The Judge stated that Applicant had not been aware that his wife had failed to file their tax returns for 2013 through 2017 but that, after he did become aware, he ensured that all the returns were filed,” the DOHA case notes.
Upon review, however, the Department Counsel noted that documents available to the applicant revealed the tax obligations, and that it hadn’t been paid. In addition, the applicant misled on the security clearance application by answering “No” to the question as to whether there had been a failure to file. Whether or not the applicant knew, the court made a strong argument that the applicant should have known – and punting the blame onto a spouse is not mitigating.
“A person with an appropriate degree of concern for complying with laws and regulations might be expected to have noticed that he had not signed an income tax return for at least five years,” the case states. The court also noted a $6,000 financial loss due to the spouse’s gambling problem. That figure in and of itself may not be significant, but taken in tandem with the fact the applicant was attempting to punt his financial responsibility onto a cleared unqualified significant other is an issue. When considering an individual’s worthiness of accessing classified information, ability and willingness to follow rules are key.
A DOHA Appeal
The appeal is an example of how even a favorable determination can be overturned. Department Counsel in this case (or applicant’s if the appeal was in reverse), can’t present new information. But they can argue that the judge initially failed to consider the existing evidence adequately. In this case, it was a snowballing of issues along with a lack of mitigating factors or efforts to proactively solve financial issues prior to obtaining a security clearance. The government even noted that the applicant had failed to request a copy of his credit report prior to applying for a security clearance. Sometimes a simple step like getting your finances in a row (and paying unpaid taxes before you apply), can help pave the way for a favorable determination.
FALSE: You can’t punt your clearance problems to your partner. Their debt (or other issues) are yours, as well.
