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ISCR 04-12449.a1: Guideline B security clearance appeal, denied (2007) · CASE

ISCR Case 04-12449.a1denied

Case headnote

ISCR Case No. 04-12449.a1

May 14, 2007· Hon. Jean E. Smallin· appeal

Summary

A naturalized U.S. citizen, originally from Afghanistan, was denied a security clearance due to concerns under Guidelines B (Foreign Influence), C (Foreign Preference), E (Personal Conduct), and J (Criminal Conduct). The denial stemmed from several disqualifying conditions, including unresolved inconsistencies in his statements regarding past military service in Afghanistan and the use of a foreign passport after becoming a U.S. citizen.

Further concerns arose from the applicant's criminal history, specifically a conviction for assault and battery, which fell under Guideline J. Additionally, the applicant provided false answers on his security clearance application concerning his military service and foreign travel, raising issues under Guideline E (Personal Conduct).

The Board affirmed the Judge's decision, finding substantial evidence to support the security concerns. The applicant's continued use of a foreign passport post-naturalization and the false statements on his application were key factors in the denial.

Conditions referenced

Disqualifying

AG ¶ 16raisedCriminal Conduct
AG ¶ 9raisedPersonal Conduct
AG ¶ 8raisedForeign Preference

Key rule quoted

“[T]here is a strong presumption against granting a security clearance.”
Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert den 499 U.S. 905 (1991)

Procedural posture

SOR issuedAug 16, 2005
Answer filed—
Hearing heldAug 21, 2006
Decision dateMay 14, 2007

Cite for

Substantial Evidence of Security Concerns Under Guidelines C, J, and E
False Statements on Security Clearance Applications
Presumption Against Granting Security Clearances

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 multiple guidelines. The applicant challenged the Judge's findings and treatment of mitigating conditions. The Board affirmed the Judge's decision, finding no harmful error and that the decision was supported by substantial evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowDarlene Lokey Anderson denied the clearance

Decided ona hearing

Guidelines belowGuideline CGuideline BGuideline JGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant contended that the Judge's findings of fact were not supported by substantial evidence.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argued that the Judge's treatment of the relevant mitigating conditions was arbitrary, capricious, and contrary to law.

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 findings were supported by substantial evidence and that the Judge's decision was not arbitrary, capricious, or contrary to law. The Board also noted that any potential error in the Judge's findings was harmless and did not affect the outcome of the case.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference 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 C; Guideline B; Guideline J; Guideline E DIGEST: The Board concludes that the Judge’s finding that Applicant severed in the Afghan military is supported by substantial evidence. In DOHA proceedings the Federal Rules of Evidence serve only as a guide. The Judge noted numerous unresolved inconsistencies between Applicant’s version of events and the government’s evidence. Adverse decision affirmed. CASENO: 04-12449.a1 DATE: 05/14/2007 DATE: May 14, 2007 In Re: --------- SSN: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 04-12449

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Gina L. Marine, Esq., Department Counsel FOR APPLICANT Edward O. Lear, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August16, 2005, DOHA issued a statement of reasons advising Applicant of the basis for that decision–security concerns raised under Guideline C (Foreign Preference), Guideline B The Judge’s favorable decision under Guideline B is not at issue in this appeal. (Foreign Influence), Guideline 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 August 21, 2006, after the hearing, Administrative Judge Darlene Lokey Anderson denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issues on appeal: whether certain of the Judge’s findings of fact were supported by substantial evidence; and whether the Judge’s treatment of the relevant mitigating conditions was arbitrary, capricious, and contrary to law. Finding no harmful error, we affirm the Judge’s decision. Whether the Record Supports the Judge’s Factual Findings A. Facts The Judge made the following pertinent findings of fact: Applicant was born in Afghanistan. He obtained a degree in Public Administration and Diplomacy in 1972 from Kabul University. Applicant attended a “special program” in the Academy of War, enabling him to satisfy his country’s one-year military service requirement. From 1973 until 1975 he attended classes, wore a uniform, and held the position of “Third Lieutenant.” The Judge found that “more likely than not, the Applicant served in the . . . Afghan military for a one year period.” Following his participation in this program, Applicant worked for the Afghan government from 1973 until at least 1992 in a variety of positions, including First Secretary of the Afghan Embassy in Japan; Director of Diplomatic Service and Member Protocol Department of the Afghan Foreign Affairs Ministry; and President of the Deputy Prime Minister’s Office. In June 1992 he obtained an Afghan diplomatic passport, which was reissued on February 28, 2002 and extended to February 27, 2004. In 1992 Applicant immigrated to the United States. He became a naturalized citizen in 2000 and was issued a valid U.S. passport. In July 2002 Applicant started work for a company as a translator. Although he changed jobs, he was working in Afghanistan as a translator in 2004 when “it was determined that [his] security clearance eligibility was in question.” Applicant then returned to the U.S. On November 11, 2001, Applicant was arrested and charged with assault and battery. His defense attorney filed a motion with the court to dismiss the charge on the grounds that Applicant was a diplomat of the government of Afghanistan, entitled to full immunity from prosecution. “The Motion to Dismiss (Exhibit 3) indicates that the Applicant possessed a valid diplomatic passport that was extended until February 2004 and that he traveled to attend a conference in Germany in 2002, wherein an interim government for the country of Afghanistan was formed.” As to the facts underlying the charge, the Judge found that Applicant had gone to the hospital for treatment following a fall from a ladder. Applicant requested pain medication from a nurse whereupon, according to three witnesses, Applicant spat in her face. This information was found Applicant Exhibit A contains, among other things, Applicant’s resume. This document states that Applicant graduated from high school in 1968. It also states that, the same year, he graduated from the Army Academy “as a reserved [sic] officer.” While this might corroborate the view that Applicant had indeed served in the Afghan military, in a Police Report included in Exhibit 3. Applicant was convicted of the charge, sentenced to jail, and fined $100. The Judge found that Applicant answered three questions on the Security Clearance Applicant (SCA) falsely. The first of the three was Question 11, which asked if he had ever served in the military, to include a foreign military service. The next, Question 15, asked if, within the previous seven years, Applicant had ever possessed a passport issued by a foreign government. Applicant answered “no” to both of these questions. The third, Question 16, asked if Applicant had ever traveled outside the U.S. on other than official U.S. business. Applicant stated “yes” and listed pleasure trips to Germany, the Netherlands, and France in 1996 and 2000. However, he did not mention the trip to Germany in 2002, described in the Motion to Dismiss included in Exhibit 3. The Judge included in her findings a summary of the evidence Applicant submitted in his own behalf. These included the testimony of six character witnesses, to the effect that Applicant is reliable, trustworthy, and of high integrity. These opinions were corroborated by numerous letters of recommendation. The Judge held the record open for Applicant to submit additional information. Applicant’s daughter submitted a statement to the effect that Applicant did not “falsify his diplomatic passport” but that she, the daughter, knows who did. The Judge concluded that this submission was untimely and, in any event, was not of a nature to cast doubt on the validity of Applicant’s diplomatic passport, included in Exhibit 3. B. Discussion The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they are supported by substantial evidence–such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record.” Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620-21 (1966). In evaluating the Judge’s findings, we are required to give deference to the Judge’s credibility determinations. Directive ¶ E3.1.32.1. Applicant has challenged the Judge’s finding that he had served in the miliary of Afghanistan. He also challenges the Judge’s admission of Exhibit 3 on the grounds that it is hearsay. 1. Foreign Military Service: Applicant contends that the Judge erred in finding that he had served in the Afghan military. Applicant claims that he never actually entered active duty, attending the Academy of War in a civilian capacity. See, e. g., Tr. at 203. In his appeal brief, Applicant analogized his status to that of cadets at a U.S. military college, who are not in active duty status while pursuing their studies. On the other hand, we note the Judge’s finding that while performing this service, Applicant wore a uniform and held an apparent military rank. Additionally, in his response to the SOR, Applicant states, “Like all other men in Afghanistan, I did serve my time with the Afghan military.” We conclude that the Judge’s finding is based upon substantial evidence. we note that it is five years prior to the earliest date of service referenced in the SOR and in the Judge’s findings. The Judge makes no reference to it in her decision, and neither party relies upon it in their appellate briefs. Therefore, we have disregarded this matter in resolving the issue on appeal. This is a different attorney from the one who represented Applicant at the hearing and upon this appeal. Even if the finding is in error, however, it is not reasonably likely to have affected the outcome of the case. See ISCR 01-23362 at 2 (App. Bd. Jun. 5, 2006); ISCR Case No. 03-09915 at 5 (App. Bd. Dec. 16, 2004); ISCR Case No. 01-11192 at 5 (App. Bd. Aug. 26, 2002). Therefore, any error would be harmless. 2. Hearsay Nature of Court Documents: Applicant contends that it was error for the Judge to admit the documents contained in Exhibit 3 (Motion of Dismiss and Police Report) and to consider them for the truth of such contested matters as Applicant’s possessing a foreign passport; having traveled to Germany in 2002; and for the facts underlying the assault charge. In DOHA proceedings, the Federal Rules of Evidence service only as a guide. They may be relaxed by the Judge (with one exception not applicable to this appeal) in order to permit the development of a full and complete record by the parties. Directive ¶ E3.1.19. By design, the DOHA process encourages Judges to err on the side of initially admitting evidence into the record and then to consider a party’s objections when deciding what, if any, weight to give to that evidence. Because DOHA proceedings are conducted before impartial, professional fact finders, there is less concern about the potential prejudicial effect of specific items of evidence than there is in judicial proceedings conducted before a lay jury. See, e.g., ISCR Case No. 04-11571 at 2-3 (App. Bd. Feb. 8, 2007). In this case, the Motion to Dismiss was prepared by Applicant’s attorney, who certified under penalty of perjury that the facts contained therein, including a copy of the Afghan passport, were true. Furthermore, the Police Report was detailed, internally consistent, bore the name and badge number of the investigating police officer, and was an official record prepared for a purpose other than at DOHA. We have examined the documents and conclude that they possess sufficient indicia of reliability so as to have been admissible in Applicant’s hearing. See ISCR Case No. 01- 02677 at 3 (App. Bd. Oct. 17, 2002) (Internal company investigation report containing evidence of applicant misconduct admissible insofar as it possessed “sufficient indicia of reliability”). We conclude that the Judge did not err in admitting the documents contained in Exhibit 3. Furthermore, we hold that the Judge’s findings that are drawn from this exhibit are based upon substantial evidence. Whether the Record Supports the Judge’s Ultimate Conclusions A Judge is required to “examine the relevant data and articulate a satisfactory explanation for” the decision, “including a ‘rational connection between the facts found and the choices made.’” 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 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). The Appeal Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary, capricious, or contrary to law. Directive ¶¶ E3.1.32.3 and E3.1.33.3. “[T]here is a strong presumption against granting a security clearance.” Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert den 499 U.S. 905 (1991). Once the government presents th evidence raising security concerns, the burden shifts to the applicant to establish any appropriate mitigating conditions. See Directive ¶ E3.1.15. “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. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole.” See ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20, 2006). Applicant contends that his evidence and testimony satisfied his burden of persuasion as to the relevant mitigating conditions. The Board does not find that contention persuasive. We do not agree with Applicant. Even if one assumes that her finding as to Applicant’s military service was error, the remaining findings support the Judge’s conclusion that Applicant had failed to meet his burden of persuasion as to the security concerns raised under Guidelines C, J, and E. These findings include his possession and use of a foreign passport after becoming a U.S. citizen, as reflected in the Motion to Dismiss; his lengthy service to the government of Afghanistan; and his criminal conduct, to include the false answers to Questions 15 and 16. The Judge also noted numerous unresolved inconsistencies between Applicant’s version of the pertinent events and that contained in the Government’s evidence. Accordingly, we hold that her adverse clearance decision is not arbitrary, capricious, or contrary to law.

ORDER

The Judge’s decision 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