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ISCR Case 05-02593.a1 — CASE

ISCR Case 05-02593.a1denied

Case Headnote

ISCR Case No. 05-02593.a1

Mar 9, 2007· Hon. Jean E. Smallin· appeal

Summary

An applicant, represented by counsel, was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline F (Financial Considerations), and Guideline G (Alcohol Consumption). The appeal board affirmed the denial, finding the judge's conclusions to be sustainable and not arbitrary.

Disqualifying conditions were raised under AG ¶ 16, AG ¶ 19, and AG ¶ 21, while mitigating conditions were applied under AG ¶ 20, AG ¶ 22, and AG ¶ 17. However, these mitigating factors were insufficient to overcome the security concerns.

The denial was based on the applicant's deliberate and intentional falsification of his security clearance application. The judge's findings regarding unresolved security concerns related to alcohol consumption, financial issues, and personal conduct were upheld. The applicant's arguments challenging these findings were not persuasive, leading to the final decision to deny the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 16raisedDeliberate Falsification
AG ¶ 19raisedFinancial Considerations
AG ¶ 21raisedAlcohol Consumption

Mitigating

AG ¶ 20rejectedMitigating Conditions for Financial ConsiderationsThe judge found insufficient mitigating evidence to overcome the government's security concerns.
AG ¶ 22rejectedMitigating Conditions for Alcohol ConsumptionThe judge reasonably weighed the mitigating evidence against the seriousness of the disqualifying conduct.
AG ¶ 17rejectedMitigating Conditions for Personal ConductThe judge concluded that the applicant's omission was deliberate and intentional.

Key Rule Quoted

“An applicant’s disagreement with the Judge’s weighing of the evidence is not sufficient to demonstrate error.”
— ISCR Case No. 02-12789 at 3 (App. Bd. May 13, 2005)

Procedural Posture

SOR issuedOct 20, 2005
Answer filed—
Hearing heldJun 21, 2006Applicant requested decision on written record.
Decision dateMar 9, 2007Appeal board affirmed the denial.

Cite For

Sustainable Findings of Deliberate Falsification Under Guideline E
Insufficient Mitigating Evidence for Financial Considerations Under Guideline F
Seriousness of Alcohol Consumption Issues Under Guideline G

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 concerns under Guidelines G, F, and E. The applicant argued that the Judge erred in material findings and in the conclusions regarding mitigation of security concerns. The Board affirmed the Judge's decision, finding no harmful error in the Judge's conclusions.

Appealed bythe applicant

Applicant representationAttorney

Judge belowCharles D. Ablard — denied the clearance

Decided onthe written record

Guidelines belowGuideline GGuideline FGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contends that the Judge erred by concluding that the security concerns raised under Guidelines G and F had not been mitigated.
Erroneous finding of fact — raised by the applicantRejected
Applicant argues that the Judge erred with respect to his material findings regarding the discharge of a debt in bankruptcy.
Credibility determination — raised by the applicantRejected
Applicant argues 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 findings were either permissible characterizations or harmless errors, and that the Judge's conclusions regarding the applicant's security concerns were sustainable based on the evidence presented.

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 G; Guideline F; Guideline E DIGEST: The challenged findings are either permissible characterizations or harmless error. An applicant’s disagreement with the Judge’s weighing of the evidence is not sufficient to demonstrate error. The Judge’s finding of deliberate falsification is sustainable. Adverse decision affirmed. CASENO: 05-02593.a1 DATE: 03/09/2007 DATE: March 9, 2007 In Re: ------ SSN: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 05-02593

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Melvin A. Howry, Esq., Department Counsel FOR APPLICANT Kevin M. Sherlock, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On October 20, 2005, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline G (Alcohol Consumption), Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested that the case be decided on the written record. On June 21, 2006, after considering the record, Administrative Judge Charles D. Ablard 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 with respect to his material findings; whether the Judge erred by concluding that the security concerns raised under Guidelines G and F had not been mitigated; whether the Judge erred in concluding Applicant’s falsification of his security clearance application was deliberate. (1) Applicant argues that the Judge’s adverse clearance decision should be reversed because the Judge made several errors with respect to his findings. Specifically, Applicant contends that the Judge erred in finding that one of Applicant’s debts had not been discharged in bankruptcy. He also contends that the Judge erred in finding that Applicant’s consumption of alcohol to the point of intoxication was anything other than “occasional.” In support of the first contention, Applicant attaches new evidence in the form of bankruptcy records which indicate the debt in question was in fact discharged. The Board concludes that Applicant has not demonstrated harmful 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 Judge. See, e.g., ISCR Case No. 02- 12789 at 3 (App. Bd. May 13, 2005). The findings which Applicant challenges are either permissible characterizations by the Judge or harmless error, in that they would not be reasonably likely to change the outcome of the case. Applicant has not met his burden of demonstrating that the Judge’s material findings with respect Applicant’s circumstances 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 contends that the Judge erred in concluding that the security concerns raised under Guidelines G and F had not been mitigated. In support of that contention, Applicant essentially restates the facts of his case and argues that the Judge mis-weighed the evidence, by failing to given adequate consideration to the favorable evidence. Based upon the record as a whole, Applicant asserts that his conduct was not of sufficient seriousness to be of security concern. Applicant’s arguments do not demonstrate error on the part of the Judge. 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. June 29, 2005). Given the record that was before him, the Judge’s ultimate unfavorable clearance decision under Guidelines G and F is sustainable. (3) Finally, Applicant argues that he did not deliberately falsify his security clearance application by failing to disclose adverse information about his financial problems. 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 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. Applicant has not demonstrated that the Judge’s unfavorable clearance decision under Guideline E is arbitrary, capricious, or contrary to law.

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