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ISCR 20-00877: Guideline B security clearance appeal, denied (2023) · CASE

ISCR Case 20-00877denied

Case headnote

ISCR Case No. 20-00877

Feb 6, 2023· Hon. Gregg A. Cervi· appeal

Summary

The applicant, representing himself, was denied a security clearance based on concerns under Guideline E (Personal Conduct), Guideline B (Foreign Influence), and Guideline F (Financial Considerations). The appeal affirmed this denial, finding favorably for the applicant only under Guideline B.

The denial was primarily driven by the applicant's personal conduct and financial issues. He was investigated for using company email to communicate with foreign women from dating sites and took personal loans to wire funds to a woman he met online. Furthermore, the applicant was terminated from his employment for mischarging time and falsifying information during his background interview.

Financially, the applicant had eight delinquent debts totaling approximately $72,000. While the appeal found favorably regarding foreign influence, the adverse findings under personal conduct and financial considerations were sufficient to uphold the denial of the security clearance.

Conditions referenced

Disqualifying

AG E2.aappliedDeliberate Misrepresentation of Relevant Facts to Obtain a Security Clearance
AG F3appliedFailure to Meet Financial Obligations

Mitigating

AG B2raisedThe Behavior Was Not Recent and the Applicant Has Taken Steps to Address the Issues

Key rule quoted

“Our authority to review a case is limited to cases in which the appealing party has alleged the Judge committed harmful error.”

Procedural posture

SOR issuedApr 15, 2021
Answer filed—
Hearing held—Decision on the written record.
Decision dateFeb 6, 2023Appeal affirmed.

Cite for

Denial Based on Personal Conduct and Financial Considerations
Insufficient Demonstration of Harmful Error on Appeal
Favorable Finding Under Guideline B Despite Adverse Findings Under E and F

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, B, and F. The Applicant argued that the Administrative Judge made incorrect findings of fact but did not assert any harmful errors. The Board affirmed the decision of the Administrative Judge.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRoss D. Hyams denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline EGuideline BGuideline F

What the Board reviewed

No specific harmful error alleged, raised by the applicantRejected
Applicant contends that the Administrative Judge was incorrect on some findings of fact.

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 that the Applicant did not allege any harmful error that would warrant overturning the Administrative Judge's decision. The only error noted was deemed harmless and did not affect the outcome.

Standard of review applied

No de-novo re-decisionHarmful-error gatekeeper

Appeal Board panel

James F. Duffy (Chair)
Moira Modzelewski
Gregg A. Cervi

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. 20-00877

)

) Applicant for Security Clearance ) _______________________________________) DEPARTMENT OF DEFENSE DEFENSE LEGAL SERVICES AGENCY DEFENSE OFFICE OF HEARINGS AND APPEALS APPEAL BOARD POST OFFICE BOX 3656 ARLINGTON, VIRGINIA 22203 (703) 696-4759 Date: February 6, 2023

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 April 15, 2021, DoD issued a statement of reasons (SOR) advising Applicant of the basis of that decision—security concerns raised under Guideline E (Personal Conduct), Guideline B (Foreign Influence), and Guideline F (Financial Considerations) of DoD Directive 5220.6 (January 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. In June 2022, Department Counsel submitted the Government’s file of relevant material (FORM) to Applicant, who provided material in a timely response. On December 15, 2022, after consideration of the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Ross D. Hyams denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The Judge found favorably for Applicant on the Guideline B allegations and adversely to Applicant on the Guideline E and Guideline F allegations. Under Guideline E, the SOR alleged that Applicant was investigated by his employer in 2016 for using his company email to correspond

with foreign women whom he met on online dating sites; that he took out personal loans to wire funds to a woman living abroad whom he met on a dating website; that he was fired by his employer in 2018 for mischarging time; and that he falsified material facts regarding being terminated during his background interview in 2019. Under Guideline F, the SOR alleges eight delinquent debts totaling approximately $72,000. To the extent that we understand Applicant’s argument on appeal, he contends that the Administrative Judge was incorrect on some of his findings of fact because no one had talked to Applicant since his background interview in early 2019 to “confirm the supposed facts.” Appeal Brief at 1. We note first that Applicant was provided the opportunity in May 2020 to review the summaries of his multiple interviews with background investigators and that he adopted those summaries as accurate. GE 4 at 16. Second, we note that Applicant was provided an opportunity to respond to the FORM and availed himself of that opportunity. Finally, we note that the only error that Applicant highlights is that he has held a security clearance since 1997 vice 2001. Appeal Brief at 1. This was a harmless error as it did not likely have an impact on the outcome of the case. See, e.g., ISCR Case No. 19-01220 at 3 (App. Bd. Jun. 1, 2020). Besides that error, Applicant’s appeal brief makes no other assertion of harmful error on the part of the Judge. Instead, Applicant re-states information regarding the alleged online relationships, his 2018 termination, and his debts that was previously provided to the Judge in Applicant’s answer to the SOR and his response to the FORM. The Appeal Board does not review cases de novo. Our authority to review a case is limited to cases in which the appealing party has alleged the Judge committed harmful error. See, e.g., ISCR Case No. 18-01962 at 2 (App. Bd. Aug. 29, 2019). Because Applicant has not alleged any harmful error, the decision of the Judge denying Applicant a security clearance is sustainable.

ORDER

The decision is AFFIRMED. Signed: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board Signed: Gregg A. Cervi Gregg A. Cervi Administrative Judge Member, Appeal Board