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ISCR Case 06-08653.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date5/14/2007
Statusdenied
LevelAPPEAL
TypeTRUSTWORTHINESS
Participants
Applicant Representation: Pro Se
Judge: Jean E. Smallin, James E. Moody, William S. Fields
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline GAlcohol Consumption · Against Applicant
- Guideline HDrug Involvement & Substance Misuse · Against Applicant
- Guideline JCriminal Conduct · Against Applicant

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ISCR Case 06-08653.a1denied

Case Headnote

ISCR Case No. 06-08653.a1

deniedMay 14, 2007· Hon. Jean E. Smallin· appeal

Summary

An applicant representing himself was denied a trustworthiness designation due to concerns under Guidelines E (Personal Conduct), G (Alcohol Consumption), H (Drug Involvement), and J (Criminal Conduct). The denial was based on findings that the applicant deliberately and intentionally failed to disclose adverse information.

The judge's conclusions regarding trustworthiness concerns were supported by substantial evidence. The applicant's arguments concerning mitigating evidence were deemed insufficient to overturn the initial decision.

Ultimately, the appeal board affirmed the denial, finding the judge's conclusions sustainable and the applicant's arguments unpersuasive. The trustworthiness designation was therefore denied.

Why the Applicant Was Denied

The applicant's failure to disclose adverse information was found to be deliberate and intentional.
The judge's findings of trustworthiness concerns were supported by substantial evidence.
The applicant's arguments regarding mitigating evidence were not sufficient to overturn the judge's decision.

Conditions Referenced

Disqualifying

Guideline EraisedPersonal Conduct
Guideline GraisedAlcohol Consumption
Guideline HraisedDrug Involvement
Guideline JraisedCriminal Conduct

Key Rule Quoted

“The federal government need not wait until an applicant actually mishandles or fails to properly handle or safeguard classified information before it can deny or revoke access to such information.”
— Adams v. Laird, 420 F.2d 230, 238-239 (D.C. Cir. 1969)

Procedural Posture

SOR issuedMay 17, 2006
Answer filed—Applicant represented himself.
Hearing heldOct 30, 2006Decision made on the written record.
Decision dateMay 14, 2007

Cite For

Deliberate Falsification Under Guideline E
Trustworthiness Concerns Under Guidelines G, J, E, and H
Sustainability of Judge's Findings Based on Substantial Evidence

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

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 J; Guideline E; Guideline H DIGEST: The challenged findings are at most harmless error. The Judge was not bound as a matter of law to accept or reject Applicant’s explanation for his failure to disclose adverse information on his standard form 85P. On this record the Judge’s finding of deliberate falsification is sustainable. The Board may not consider new evidence on appeal. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious or contrary to law. Adverse decision is affirmed. CASENO: 06-08653.a1 DATE: 05/14/2007 DATE: May 14, 2007 In Re: ---------- SSN: ------ Applicant for Trustworthiness Designation ) ) ) ) ) ) ) ) ADP Case No. 06-08653

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) proposed to deny or revoke access to automated information systems in ADP-I/II/II sensitivity positions for Applicant. On May 17, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—trustworthiness concerns raised under Guideline G (Alcohol Consumption), Guideline J (Criminal Conduct), and Guideline E (Personal Conduct) pursuant to Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). The SOR was subsequently amended on motion of the government without objection by Applicant to add allegations under Guideline H (Drug Involvement). Applicant requested a decision on the written record. On October 30, 2006, after considering the record, Administrative Judge Shari Dam denied Applicant’s request for a trustworthiness designation. Applicant submitted a timely appeal 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 her findings; whether the Judge erred in concluding Applicant’s falsification of his Standard Form 85P was deliberate; whether the Judge erred by concluding that the trustworthiness concerns raised under Guidelines G, J, E, and H had not been mitigated. (1) Applicant argues that the Judge made several errors with respect to her findings. Specifically, Applicant contends he had only been arrested on four criminal charges rather than six. The Board concludes that Applicant has not demonstrated harmful error on the part of the Judge. The findings which Applicant challenges are at most 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 trustworthiness 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 trustworthiness concern are supported by substantial evidence and are sustainable. (2) Applicant argues that he did not deliberately falsify his Standard Form 85P by failing to disclose adverse information about his prior arrests and convictions. It is Applicant’s contention that the omission of the information in question was unintentional—the result of Applicant having prepared his Standard Form 85P based upon information “recited off the top of [his] head” without a copy of his records before him. 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. Applicant has not demonstrated that the Judge’s conclusion in that regard is arbitrary, capricious, or contrary to law. (3) Applicant contends that the Judge erred in concluding that the trustworthiness concerns raised under Guidelines G, J, E, and H had not been mitigated. In that regard, Applicant essentially restates the facts of his case and argues that the Judge misweighed the evidence by failing to give adequate consideration to the favorable evidence. In particular, Applicant asserts that he has never consumed alcohol before or during his work shift, that he has promised not to use illegal drugs in the future, and that there is no relation between his prior disqualifying conduct and his current trustworthiness. Applicant also submits new evidence in the form of three character reference letters, a copy of his criminal record, and a Wisconsin Department of Workforce Development document referencing Wisconsin Statutes 111.31-111.395 which prohibit employers from denying employment to an individual with a criminal conviction unless they can show that the conviction was substantially related to the particular job. 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 Judge. See, e.g., ISCR Case No. 02- 12789 at 3 (App. Bd. May 13, 2005). Moreover, compliance with state law is not required because trustworthiness adjudications are conducted by the Department of Defense pursuant to federal law. See U.S. Constitution, Art. VI, Cl. 2 (Supremacy Clause). See, e.g., ISCR Case No. 00-0423 at 3 (App. Bd. June 8, 2001); ISCR Case No. 03-17708 at 2, n. 5 (App. Bd. June 9, 2006). 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 trustworthiness determination. 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. She reasonably explained why there was insufficient mitigating evidence to overcome the government’s trustworthiness 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). The Directive presumes there is a nexus or rational connection between proven conduct under any of the Guidelines and an applicant’s trustworthiness eligibility. See, e.g., ISCR Case No. 02- 22325 at 3-4 (App. Bd. July 30, 2004). The federal government need not wait until an applicant actually mishandles or fails to properly handle or safeguard classified information before it can deny or revoke access to such information. See Adams v. Laird, 420 F.2d 230, 238-239 (D.C. Cir. 1969). In this case, Applicant’s excessive alcohol consumption, illegal drug use, criminal conduct, and multiple falsifications provide a sufficient rational basis for the Judge’s unfavorable trustworthiness determination. See, e.g., ISCR Case No. 04-12548 at 2-3 (App. Bd. Sept. 18, 2006). Given the record that was before her, the Judge’s ultimate unfavorable trustworthiness determination under Guidelines G, J, E and H is sustainable.

ORDER

The decision of the Judge denying Applicant a trustworthiness designation 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