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ISCR 05-16743.a1: Guideline B security clearance appeal, denied (2007) · CASE

ISCR Case 05-16743.a1denied

Case headnote

ISCR Case No. 05-16743.a1

Apr 11, 2007· Hon. Jean E. Smallin· appeal

Summary

An applicant, representing herself, was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The denial stemmed from a conviction for shoplifting and a deliberate omission on her Security Clearance Application.

Specifically, the applicant failed to disclose the shoplifting conviction on her application, which was determined to be an intentional falsification. This omission raised disqualifying conditions under both personal conduct and criminal conduct guidelines. While mitigating conditions were considered, they were not sufficient to overcome the security concerns.

The appeal board affirmed the initial denial, concluding that the judge's finding of intentional falsification was sustainable based on the evidence presented. Consequently, the applicant's security clearance was denied.

Conditions referenced

Disqualifying

AG ¶ 16raisedCriminal Conduct
AG ¶ 15raisedPersonal Conduct

Mitigating

AG ¶ 17rejectedCriminal ConductThe judge found the applicant's omission intentional, negating the applicability of mitigating conditions.
AG ¶ 17rejectedPersonal ConductThe judge determined that the applicant's intent was not credible.

Key rule quoted

“The Judge had to consider Applicant’s statements in light of the record evidence as a whole, and Applicant’s denial of any intent to provide false information did not preclude the Judge from weighing the record evidence and making findings that contradicted Applicant’s denials.”
ISCR Case No. 01-19278 at 6-7 (App. Bd. Apr. 22, 2003)

Procedural posture

SOR issuedFeb 2, 2006
Answer filed—
Hearing heldSep 11, 2006
Decision dateApr 11, 2007

Cite for

Deliberate Falsification of Information on a Security Clearance Application
Significant Security Concerns Arising From Criminal Conduct
Weighing of Evidence in Determining Intent 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 a denial of a security clearance based on allegations under Guidelines B, E, and J. The Applicant contended that the Judge erred in finding that she intentionally made a false statement on her application. The Board affirmed the Judge's decision, finding no harmful error in the ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJames A. Young denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline BGuideline EGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant argued that the Judge erred by concluding that she intentionally made a false statement on her Security Clearance Application.

Why the Board ruled this way

The Board found that the Judge's conclusion regarding the Applicant's intent was sustainable based on the evidence presented, and the unfavorable decision was not arbitrary or capricious.

Standard of review applied

Harmful-error gatekeeperSubstantial-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 B; Guideline E; Guideline J DIGEST: Given the record that was before him the Judge’s finding that Applicant’s omission was a deliberate falsification is sustainable. Adverse decision affirmed. CASENO: 05-16743.a1 DATE: 04/11/2007 DATE: April 11, 2007 In Re: -------- SSN: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 05-16743

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 February 2, 2006, DOHA issued a statement of reasons advising Applicant of the basis for that decision—security concerns raised under Guideline B (Foreign Influence), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 11, 2006, after the hearing, Administrative Judge James A. Young denied Applicant’s request for a The Judge found in favor of Applicant under Guideline B and with respect to SOR paragraph 2.a. Those favorable findings are not at issue on appeal. security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.1 Applicant raised the following issue on appeal: whether the Judge erred by concluding that Applicant intentionally made a false statement on her Security Clearance Application. Applicant argues that the Judge erred by concluding that Applicant had intentionally made a false statement on her Security Clearance Application. Applicant contends that the omission occurred because she had not read the question properly. Applicant’s argument does not demonstrate that the Judge erred. Applicant’s statements about her intent and state of mind when he executed the document in question were relevant evidence, but they were not binding on the Judge. See, e.g., ISCR Case No. 01-19278 at 6-7 (App. Bd. Apr. 22, 2003). As the trier of fact, the Judge had to consider Applicant’s statements in light of the record evidence as a whole, and Applicant’s denial of any intent to provide false information did not preclude the Judge from weighing the record evidence and making findings that contradicted Applicant’s denials. In this case, the Judge made sustainable findings that Applicant had omitted information of obvious security concern, relating to Applicant’s conviction on a charge of “Shoplifting.” Given the record that was before him, the Judge’s conclusion that Applicant’s omission were intentional is sustainable, and the Judge’s ultimate unfavorable clearance decision under Guidelines E and J is not 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