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ISCR Case 06-06459.a1 — CASE

ISCR Case 06-06459.a1denied

Case Headnote

ISCR Case No. 06-06459.a1

Oct 24, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline F (Financial Considerations), and Guideline J (Criminal Conduct). The primary reason for the denial was the deliberate falsification of his security clearance application.

The applicant failed to disclose multiple debts and an unpaid judgment, which constituted deliberate misrepresentation. Furthermore, his financial difficulties were recent and ongoing, directly contradicting his attempts to mitigate these concerns. The judge found the applicant's explanations insufficient to resolve the security risks associated with his personal conduct, financial irresponsibility, and criminal conduct.

Specifically, the disqualifying conditions raised included AG ¶ 16, AG ¶ 20, and AG ¶ 14. The combination of deliberate falsification and unresolved financial issues led to the ultimate denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 16raisedCriminal Conduct
AG ¶ 20raisedFinancial Considerations
AG ¶ 14raisedPersonal Conduct

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. denied, 499 U.S. 905 (1991)

Procedural Posture

SOR issuedApr 18, 2006
Answer filed—Applicant represented himself.
Hearing heldMay 24, 2007Decision made on the written record.
Decision dateOct 24, 2007

Cite For

Deliberate Falsification of Security Clearance Application Under Guideline E
Ongoing Financial Difficulties as a Basis for Denial Under Guideline F
Strong Presumption Against Granting Security Clearance as Established in Case Law.

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 financial considerations, personal conduct, and criminal conduct. The Applicant argued that the Judge erred in finding deliberate falsification and in not mitigating financial concerns. The Board affirmed the Judge's decision, finding no harmful error in the conclusions reached.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoseph Testan — denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline EGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge erred in concluding his falsification of the security clearance application was deliberate.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge's unfavorable clearance decision under Guideline F was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's unfavorable findings were sustainable and that the Applicant's arguments did not demonstrate harmful error. The Judge's conclusions regarding the Applicant's deliberate falsification and the lack of mitigation for financial difficulties were upheld.

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

Michael Y. Ra’anan — Chair
Jean E. Smallin
William S. Fields

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

FOR OFFICIAL USE ONLY When unredacted this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies KEYWORD: Guideline F; Guideline E; Guideline J DIGEST: The Judge was not bound, as a matter of law, to accept or reject Applicant’s explanation for his failure to disclose information. The Judge’s unfavorable findings are sustainable. Adverse decision affirmed. CASENO: 06-06459.a1 DATE: 10/24/2007 DATE: October 24, 2007 In Re: --------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-06459

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 April 18, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations), Guideline E (Personal Conduct) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested the case be decided on the written record. On May 24, 2007, after considering the record, Administrative Judge Joseph Testan 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 in concluding Applicant’s falsification of his security clearance application was deliberate; whether the Judge’s unfavorable clearance decision under Guideline F is arbitrary, capricious, or contrary to law. (1) Applicant argues that he did not deliberately falsify his security clearance application by failing to disclose 14 debts that had been delinquent for more than 90 or 180 days, as well as an unpaid Judgement in response to three different questions. In support of that argument, Applicant contends that he failed to disclose the information because he was ashamed of his credit history. Applicant’s argument does not demonstrate that the Judge erred. 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 omissions were deliberate and intentional. On this record, the Judge’s finding of deliberate falsification is sustainable. See Directive ¶ E3.1.32.1. His ultimate unfavorable clearance decision under Guidelines E and J is likewise sustainable.

(2) Applicant also argues that the Judge should have concluded that the security concerns raised by his history of financial difficulties had been mitigated because he had paid off most of the debts and was making payments on the remainder of them. Again, Applicant’s argument does not demonstrate that the Judge erred. “[T]here is a strong presumption against granting a security clearance.” Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). Once the government th presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The application of disqualifying and mitigating conditions 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, 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 that the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. The Applicant has not met his burden of demonstrating that the Judge erred in concluding that the Guideline F allegations had not been mitigated. Although Applicant strongly disagrees with the Judge’s conclusions, he has not established that those conclusions are arbitrary, capricious, or contrary to law. See Directive ¶ E3.1.32.3. In this case, the Judge found that Applicant had a history of not meeting financial obligations which extended over many years. At the time the case was submitted for decision he still had outstanding debts and was still in the process of making arrangements to repay them. In light of the foregoing, the Judge could reasonably conclude that Applicant’s financial problems were recent and still ongoing. 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 Judge specifically noted that Applicant had paid off many of the debts. The Board does not review a case de novo. Given the record that was before him, the Judge’s ultimate unfavorable clearance decision under Guideline F is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board