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ISCR 04-00949.a1: Guideline E security clearance appeal, denied (2007) · CASE

ISCR Case 04-00949.a1denied

Case headnote

ISCR Case No. 04-00949.a1

Mar 27, 2007· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance due to deliberate falsification of his application, falling under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The denial was based on findings that the falsification was intentional, not a misunderstanding, and that subsequent disclosures did not adequately mitigate the security concerns.

The appeal board affirmed the denial, concluding that the applicant's arguments regarding the nature of his conduct and the sufficiency of mitigating evidence were unpersuasive. The board found that the judge had reasonably weighed the mitigating evidence against the seriousness of the disqualifying conduct.

Ultimately, the judge's decision to deny the security clearance was deemed sustainable and not arbitrary or capricious, leading to the final denial of the applicant's security clearance.

Conditions referenced

Disqualifying

AG EraisedPersonal Conduct
AG JraisedCriminal Conduct

Key rule quoted

“The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision.”

Procedural posture

SOR issuedOct 18, 2005
Answer filed—
Hearing heldJul 31, 2006
Decision dateMar 27, 2007

Cite for

Deliberate Falsification Under Guideline E
Insufficient Mitigating Evidence Under Guideline J
Weighing of Evidence in Security Clearance Decisions

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 a security clearance based on security concerns under Guidelines E and J. The Applicant argued that the Judge erred in her findings and conclusions regarding his conduct. The Board affirmed the Judge's decision, finding that the security concerns were not mitigated and that the Judge's findings were supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoan Caton Anthony denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant contends that the Judge erred in concluding that the security concerns raised under Guidelines E and J had not been mitigated.
Erroneous finding of fact, raised by the applicantRejected
Applicant asserts that the Judge erred with respect to a number of findings relating to the nature, circumstances, and timing of Applicant’s April 2001 arrest.
Credibility determination, raised by the applicantRejected
Applicant contends that he did not deliberately falsify his security clearance application.

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 Judge's material findings of security concern were sustainable and that the favorable evidence cited by Applicant did not demonstrate that the Judge's decision was arbitrary, capricious, or contrary to law. The Board affirmed the Judge's decision denying the security clearance.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Jean E. Smallin
William S. Fields
James E. Moody

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

SYNOPSIS

KEYWORD: Guideline E; Guideline J DIGEST: Considering the record evidence as a whole, the Judge’s material findings of security concern are sustainable. The security concerns raised by Applicant’s falsification were not necessarily overcome by his subsequent disclosures. The favorable evidence cites by Applicant is not sufficient to demonstrate that the Judge’s decision was arbitrary capricious or contrary to law. Adverse decision affirmed. CASENO: 04-00949.a1 DATE: 03/27/2007 DATE: March 27, 2007 In Re: ---------- SSN: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 04-00949

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On October 18, 2005, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On July 31, 2006, after the hearing, Administrative Judge Joan Caton Anthony denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge erred in her findings; whether the Judge erred in concluding Applicant’s falsification of his security clearance application was deliberate; whether the Judge erred by concluding that the security concerns raised under Guidelines E and J had not been mitigated. (1) Applicant asserts that the Judge erred with respect to a number of findings relating to the nature, circumstances, and timing of Applicant’s April 2001 arrest on four felony counts of “Child Abuse Parent.” However, even if each of the challenged findings of fact were changed to reflect Applicant’s interpretation of the record evidence, it would not have undermined the Judge’s conclusions. Therefore, any such error would be at best harmless. See ISCR Case No. 05-08459 at 2, n. 1 (App. Bd. Nov. 16, 2006). Applicant has not met his burden of demonstrating that the Judge’s material findings with respect to Applicant’s conduct of security concern do not reflect a reasonable or plausible interpretation of the record evidence. Considering the record evidence as a whole, the Judge’s material findings of security concern are sustainable. (2) Applicant also contends that he did not deliberately falsify his security clearance application by failing to disclose adverse information in response to three different questions. In support of this contention, he argues that the omission of the information was due to a misunderstanding on his part, and he subsequently provided the correct information. The Board does not find this argument persuasive. The Judge had the opportunity to consider Applicant’s explanation for why he failed to disclose the information in question. The Judge was not bound, as a matter of law, to accept or reject Applicant’s explanation. The Judge considered Applicant’s explanation in light of the record evidence as a whole, and concluded there was a sufficient basis to find that Applicant’s omission was deliberate and intentional. On this record, the Judge’s findings of deliberate falsification are sustainable. See Directive ¶ E3.1.32.1; ISCR Case No. 04-03849 at 2-3 (App. Bd. Jan. 26, 2006). The security concerns raised by Applicant’s falsification were not necessarily overcome by Applicant’s subsequent disclosures to the government. See ISCR Case No. 01-19513 at 5 (App. Bd. Jan. 22, 2004). (3) Finally, Applicant contends that the Judge erred in concluding that the security concerns raised by his falsifications had not been mitigated. In support of that contention, Applicant argues that his falsifications were an isolated incident outweighed by the favorable evidence presented by the Applicant. The Board does not find these arguments persuasive. The application of disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. See, e.g., ISCR Case No. 01-14740 at 7 (App. Bd. Jan.15, 2003). Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. An applicant’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. In this case, the Judge weighed the mitigating evidence offered by Applicant against the recency and seriousness of the disqualifying conduct, and considered the possible application of relevant mitigating conditions. The Judge reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. The favorable record evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 02-28041 at 4 (App. Bd. Jun. 29, 2005). Given the record that was before her, the Judge’s ultimate unfavorable clearance decision under Guidelines E and J is sustainable.

ORDER

The decision of the Judge denying Applicant a clearance is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board