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ISCR 21-00272: Guideline E security clearance appeal, denied (2022) · CASE

ISCR Case 21-00272denied

Case headnote

ISCR Case No. 21-00272

Jul 18, 2022· Hon. Moira D. Modzelewski· appeal

Summary

A security clearance applicant, representing himself, was denied clearance under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from allegations of falsifying information and outstanding child support arrears. The appeal board affirmed the initial denial, concluding there was no harmful error in thecribing judge's decision and reiterating that clearance must align with national security interests.

The board found that the applicant failed to demonstrate any harmful error in the judge's findings. The judge's decision was supported by the evidence presented during the hearing, and the applicant's arguments largely consisted of disagreements with how the judge weighed that evidence.

Specifically, the denial was based on disqualifying conditions raised under Adjudicative Guidelines Paragraph 16 and Paragraph 19. Ultimately, the applicant's security clearance was denied.

Conditions referenced

Disqualifying

AG ¶ 16raisedPersonal Conduct
AG ¶ 19raisedFinancial Considerations

Key rule quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with national security.’”
Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural posture

SOR issuedSep 30, 2021
Answer filed—
Hearing heldMay 5, 2022
Decision dateJul 18, 2022

Cite for

Affirmation of Denial Under Guideline E for Falsification of Information
Affirmation of Denial Under Guideline F for Financial Considerations
Standard for Granting Clearance Based on National Security Consistency

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Affirmed

The appeal involved a denial of security clearance based on concerns under Guideline E and Guideline F. The applicant argued that the judge erred in not making a formal finding on a specific allegation and disregarding evidence regarding child support payments. The Board affirmed the decision, finding no harmful error and that the judge's conclusions were supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJuan J. Rivera denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline EGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant contends there was an error made by DOHA regarding the third Guideline E allegation that asserts he falsified information about an employment termination in his 2020 security clearance application.
Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant contends the Judge disregarded evidence regarding his ongoing child support payments.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found no harmful error in the Administrative Judge's decision and affirmed the denial of the security clearance.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decision

Appeal Board panel

James F. Duffy (Chair)
James E. Moody
Moira Modzelewski

Descriptive structured reading of this decided, public Appeal Board decision: what the case says, not a prediction or advice.

Full decision

The complete, official text, footnotes and signatures included, is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

APPEARANCES

_______________________________________ ) In the matter of: )

)

----- )

ISCR Case No. 21-00272

)

) Applicant for Security Clearance ) _______________________________________) Date: July 18, 2022

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On September 30, 2021, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision―security concerns raised under Guideline E (Personal Conduct) and Guideline F (Financial Considerations) of DoD Directive 5220.6 (January 2, 1992, as amended) (Directive). Applicant requested a hearing. On May 5, 2022, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Juan J. Rivera denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. For reasons stated below, we affirm the decision. The Judge found in Applicant’s favor on two Guideline E allegations. Those findings have not been raised as an issue on appeal. Applicant contends there was an error made by “DOHA” regarding the third Guideline E allegation that asserts he falsified information about an employment termination in his 2020 security clearance application. Appeal Brief at 1. The Judge erred in failing to make a formal finding regarding this allegation. Section 3(7) of Executive Order 10865 provides that an adverse security clearance decision shall make findings for or against an

applicant on each SOR allegation. See also Directive ¶ E3.1.25. Based on the facts of this case, this error is harmless because it did not affect the outcome of the case. Applicant contends the Judge disregarded evidence regarding his ongoing child support payments, but he does not specify the exact nature of that evidence. In addressing the child support arrearage allegation, the Judge found that Applicant presented an earnings statement for February 2022 that showed a $253 child support deduction. Our review of the record reveals no other documentary evidence of child support payments. Applicant has failed to show the Judge erred in his examination of the evidence. Applicant’s other arguments amount to a disagreement with the Judge’s weighing of the evidence. None of his arguments are sufficient to establish that the Judge weighed the evidence in manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 18-02592 at 5 (App. Bd. Jan. 6, 2021). Applicant failed to establish that the Judge committed any harmful error or that he should be granted any relief on appeal. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on the record. “The general standard is that a clearance may be granted only when ‘clearly consistent with 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 national security.”

ORDER

The decision is AFFIRMED. Signed: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board