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ISCR Case 05-04874.a1 — CASE

ISCR Case 05-04874.a1denied

Case Headnote

ISCR Case No. 05-04874.a1

May 23, 2007· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance due to concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The denial stemmed primarily from the applicant's deliberate falsification of his security clearance application.

Specifically, the applicant intentionally omitted a 2003 arrest and conviction from his application. The judge found the applicant's explanations for this omission to be unpersuasive and lacking credibility, triggering disqualifying conditions E2.A5.2. and J1.

Although mitigating conditions E2.A5.3. and J2. were considered, the judge determined that the evidence presented by the applicant was insufficient to outweigh the seriousness of the deliberate falsification and the unresolved security concerns. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

E2.A5.2.raisedDeliberate Falsification of Material Facts
J1.raisedCriminal Conduct

Mitigating

E2.A5.3.rejectedThe Information Was Provided to the GovernmentThe judge found that the applicant's subsequent disclosures did not mitigate the security concerns.
J2.rejectedThe Criminal Conduct Was Not Recent or SeriousThe judge determined that the recency and seriousness of the disqualifying conduct were significant.

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 issuedJun 19, 2006
Answer filed—
Hearing held—Applicant requested decision on the written record.
Decision dateMay 23, 2007

Cite For

Deliberate Falsification of Security Clearance Applications Under Guideline E
Weighing of Mitigating Evidence Against Disqualifying Conduct
Insufficiency of Mitigating Evidence to Overcome Serious Security Concerns

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 was from a denial of a security clearance based on findings of deliberate falsification and security concerns under Guidelines J and E. The Applicant argued that the Judge erred in concluding the falsification was deliberate and that the security concerns had not been mitigated. The Board affirmed the Judge's decision, finding no harmful error in the conclusions reached.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMarc E. Curry — denied the clearance

Decided onthe written record

Guidelines belowGuideline JGuideline 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 E had not been mitigated.
Credibility determination — raised by the applicantRejected
Applicant contends that the Judge erred in concluding that Applicant’s falsification of his security clearance application was deliberate.

Why the Board ruled this way

The Board found that the Judge's findings of deliberate falsification 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.

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 J; Guideline E DIGEST: The Judge’s finding of deliberate falsification is sustainable. The favorable evidence cited by Applicant is not sufficient to demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. Adverse decision affirmed. CASENO: 05-04874.a1 DATE: 05/23/2007 DATE: May 23, 2007 In Re: --------- SSN: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 05-04874

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 June 19, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline J (Criminal Conduct) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested the case be decided upon the written record. On The Judge found in favor of Applicant under Guideline J. That favorable finding is not at issue on appeal. Applicant’s Brief at 1. December 27, 2006, after considering the record, Administrative Judge Marc E. Curry denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.1 Applicant raised the following issues on appeal: 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 had not been mitigated. (1) Applicant contends that he did not deliberately falsify his security clearance application by failing to disclose his 2003 arrest and conviction for Battery Causing Bodily Injury. 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 finding of deliberate falsification is sustainable. See Directive ¶ E3.1.32.1; ISCR Case No. 04-03849 at 2-3 (App. Bd. Jan. 26, 2006). (2) In the alternative, Applicant contends that the Judge erred in concluding that the security concerns raised by his falsification had not been mitigated. In support of that contention, Applicant argues that “[he] disclosed all details of [his] arrest to the investigators without provocation.”2 Applicant’s contention does not demonstrate that the Judge erred. 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 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). 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). Given the record that was before him, the Judge’s ultimate unfavorable clearance decision under Guideline 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