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ISCR 05-02619.a1: Guideline E security clearance appeal, denied (2007) · CASE

ISCR Case 05-02619.a1denied

Case headnote

ISCR Case No. 05-02619.a1

Mar 21, 2007· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance due to concerns under Guideline F (Financial Considerations) and Guideline E (Personal Conduct). The denial stemmed primarily from the applicant's deliberate failure to disclose significant financial difficulties on his security clearance application.

The judge found that the applicant's financial issues had not been sufficiently mitigated, despite the application of some mitigating conditions. The deliberate nature of the omission on the application was a key factor, raising concerns about personal conduct.

The appeal board affirmed the judge's decision, concluding that the judge's assessment of the evidence was reasonable. The board found the applicant's arguments insufficient to demonstrate any error in the initial denial.

Conditions referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

Mitigating

AG ¶ 21rejectedFinancial ConsiderationsThe judge found insufficient mitigating evidence to overcome the government's security concerns.
AG ¶ 17rejectedPersonal ConductThe judge concluded that the applicant's explanation for the omission was not credible.

Key rule quoted

“An applicant’s disagreement with the Judge’s weighing of the evidence is not sufficient to demonstrate that the Judge erred.”

Procedural posture

SOR issuedAug 25, 2005
Answer filed—
Hearing heldJul 26, 2006
Decision dateMar 21, 2007

Cite for

Deliberate Falsification of Security Clearance Application Under Guideline E
Insufficient Mitigation of Financial Issues Under Guideline F
The Standard for Weighing Evidence in Security Clearance Cases.

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 an applicant's request for a security clearance, which was denied by an Administrative Judge due to concerns under Guideline F (Financial Considerations) and Guideline E (Personal Conduct). The applicant appealed, arguing that the Judge erred in weighing the evidence and in concluding that his actions constituted deliberate falsification. The Board affirmed the Judge's decision, finding no harmful error in the Judge's conclusions.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowBarry M. Sax denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

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 by his history of financial difficulties had not been mitigated.
Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant argues that the Judge erred in concluding that his falsification of his security clearance application was deliberate.

Why the Board ruled this way

The Board found that the Judge reasonably weighed the evidence and concluded that the applicant's arguments did not demonstrate error on the part of the Judge. The Board affirmed the Judge's decision based on the substantial evidence in the record.

Standard of review applied

No de-novo re-decisionNo new evidence on appealSubstantial-evidence reviewArbitrary-and-capricious review

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 F; Guideline E DIGEST: An applicant’s disagreement with the Judge’s weighing of the evidence is not sufficient to demonstrate that the Judge erred. Adverse decision affirmed. CASENO: 05-02619.a1 DATE: 03/21/2007 DATE: March 21, 2007 In Re: ------------ SSN: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 05-02619

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 August 25, 2005, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On July 26, 2006, after the hearing, Administrative Judge Barry M. Sax 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 by concluding that the security concerns raised under Guideline F had not been mitigated; and whether the Judge erred in concluding Applicant’s falsification of his security clearance application was deliberate. Applicant contends that the Judge erred in concluding that the security concerns raised by his history of financial difficulties had not been mitigated. In support of that contention, Applicant essentially restates the facts of his case and provides new evidence in the form of documents which indicate that his student loans have now been rehabilitated and are no longer in default. Applicant also argues that he did not deliberately falsify his security clearance application by failing to disclose adverse information about his indebtedness. Finally, Applicant contends that the Judge miss- weighed the evidence, by failing to given adequate consideration to the favorable evidence. In support of that contention, Applicant notes that he served over 25 years in the military, has held a security clearance for over 27 years, and had been attempting to resolve his financial problems well before the issuance of the SOR in this case. Applicant’s arguments do not demonstrate error on the part of the Judge. The Board may not consider Applicant’s new evidence on appeal. See Directive ¶ E3.1.29. Its submission does not demonstrate error on the part of the Administrative Judge. See, e.g., ISCR Case No. 02-12789 at 3 (App. Bd. May 13, 2005). The Judge had the opportunity to consider Applicant’s explanation for why he failed to disclose the information in question on his security clearance application. 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 finding of deliberate falsification is sustainable. See Directive ¶ E3.1.32.1. 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 reasonably weighed the mitigating evidence against the seriousness of the disqualifying conduct, and considered the possible application of relevant mitigating conditions. He reasonably explained why there was insufficient mitigating evidence to overcome the government’s other security concerns. The Board does not review a case de novo. The favorable evidence cited by the 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 him, the Judge’s ultimate unfavorable clearance decision under Guidelines F and E 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