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ISCR Case 04-09637.a1 — CASE

ISCR Case 04-09637.a1denied

Case Headnote

ISCR Case No. 04-09637.a1

Oct 17, 2007· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance based on findings under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The denial stemmed from the applicant's knowing falsification and failure to disclose a felony arrest.

Specifically, the judge determined that the applicant knowingly failed to disclose a felony arrest, and found the applicant's testimony regarding this arrest to be not credible. The applicant's claims of unintentional falsehood were deemed unconvincing.

Disqualifying conditions AG ¶ 15 and AG ¶ 16 were raised, while mitigating condition AG ¶ 20 was applied. Ultimately, the applicant did not meet the burden of persuasion required for granting a security clearance, leading to the denial. Guideline B (Foreign Influence) was also cited in the decision.

Conditions Referenced

Disqualifying

AG ¶ 16raisedCriminal Conduct
AG ¶ 15raisedPersonal Conduct

Mitigating

AG ¶ 20notedMitigating Conditions

Key Rule Quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of national security.’”
— Department of the Navy v. Egan, 484 U.S. 581, 528 (1988)

Procedural Posture

SOR issuedSep 16, 2005
Answer filed—
Hearing heldJun 7, 2007
Decision dateOct 17, 2007

Cite For

Findings of Falsification Under Guideline E
Failure to Disclose Felony Arrest Under Guideline J
Burden of Persuasion for Security Clearance

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 allegations of falsification in the applicant's Security Clearance Application. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the record.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJohn Grattan Metz, Jr. — denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline JGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Judge’s conclusion that Applicant knowingly committed a falsification is a reasonable interpretation of the record evidence. The Board found no error in the Judge's decision.

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 — Chair
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

FOR OFFICIAL USE ONLY When unredacted this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies KEYWORD: Guideline B; Guideline J; Guideline E DIGEST: The Judge’s conclusion that Applicant knowingly committed a falsification is a reasonable interpretation of the record evidence. Adverse decision affirmed. CASENO: 04-09637.a1 DATE: 10/17/2007 DATE: October 17, 2007 In Re: ------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 04-09637

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT J. Theodore Hammer, Esq., Department Counsel FOR APPLICANT Alan V. Edmunds, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On September 16, 2005, DOHA issued a statement of reasons advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence), Guideline The Judge’s favorable decisions under Guideline B and Paragraph 2.a of Guideline J are not at issue in this appeal. J (Criminal Conduct) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On June 7, 2007, after the hearing, Administrative Judge John Grattan Metz, Jr. denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30.1 Applicant raises the following issue on appeal: whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings of fact: In November 1992 Applicant was arrested for trafficking drugs in the second degree and for possession of drugs, both felonies. Applicant had been driving a car rented by his employer at the time. The employer was also arrested while driving another car. The employer had been under surveillance for drug trafficking. The police uncovered illegal drugs in the employer’s car. Applicant was not prosecuted for the offense. Applicant’s Security Clearance Application (SCA) asked him to disclose any felony charges or convictions (Question 21) and to disclose any drug charges or convictions (Question 24). Applicant answered each in the negative. He did not report he 1992 incident. Applicant contended at the hearing that he had mentioned the arrest to a fellow employee, who advised him not to report it since he hadn’t been convicted. He also stated that he notified the agent who conducted his security clearance interview that he had been arrested but that the agent never questioned him about it. The Judge found Applicant’s testimony not credible. In arguing that the Judge’s decision is in error, Applicant contends that he did not intentionally provide false answers to the questions listed above. We have reviewed the Judge’s findings and the record as a whole, including the testimony of the interviewing agent. The Judge’s conclusion that Applicant had knowingly falsified his SCA reflects a reasonable interpretation of the record evidence. See Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)) (The Judge must draw a “rational connection between the facts found and the choices made.”) In light of the record evidence, the Judge’s conclusion that Applicant had failed to meet his burden of persuasion on granting him a security clearance is sustainable. See Directive ¶ E3.1.15. (Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish any appropriate mitigating conditions); Department of the Navy v. Egan, 484 U.S. 581, 528 (1988). (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of national security.’”)

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Chairman, 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