CASEClearance Adjudication Search EngineCASE

Loading case…

ISCR Case 06-16159.a1 — CASE

ISCR Case 06-16159.a1denied

Case Headnote

ISCR Case No. 06-16159.a1

Jan 10, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from a long history of financial difficulties and the deliberate falsification of information on the security clearance application.

Specifically, the applicant had a multi-year history of failing to meet financial obligations and still owed approximately $96,000 in outstanding debts. The judge determined that the applicant had the means to address these debts but made no effort to pay them. Furthermore, the judge found that the applicant's omissions on the security clearance application were deliberate and intentional.

The appeal board affirmed the denial, concluding there was no error in the judge's findings regarding the applicant's personal conduct and financial situation. The denial was based on disqualifying conditions AG ¶ 20 and AG ¶ 15.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

Key Rule Quoted

“Once there has been a concern articulated regarding an applicant’s security eligibility, there is a strong presumption against the grant or maintenance of a security clearance.”
— Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)

Procedural Posture

SOR issuedOct 16, 2006
Answer filed—
Hearing heldAug 23, 2007
Decision dateJan 10, 2008

Cite For

Deliberate Falsification of Application Responses Under Guideline E
Ongoing Financial Difficulties Under Guideline F
Burden of Proof Shifts to Applicant After Government Raises 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 involved a denial of a security clearance based on financial considerations and personal conduct. The applicant argued that the Administrative Judge erred in finding deliberate falsification of his application and that the decision was arbitrary and capricious. The Board affirmed the denial, finding no harmful error in the Judge's conclusions.

Appealed bythe applicant

Applicant representationAttorney

Judge belowLeRoy F. Foreman — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Erroneous finding of fact — raised by the applicantRejected
Applicant argued that the Judge erred in concluding that his falsification of the security clearance application was deliberate.
Decision arbitrary, capricious, or contrary to law — 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 conclusions regarding the applicant's deliberate falsification and the lack of mitigation for financial issues were supported by substantial evidence and 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

Michael Y. Ra’anan — Chair
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 F; Guideline E DIGEST: After the government presents evidence raising security concerns the burden shifts to the Applicant to establish mitigation. Adverse decision affirmed. CASENO: 06-16159.a1 DATE: 01/10/2008 DATE: January 10, 2008, In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-16159

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Alan V. Edmunds, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On October 16, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On August 23, 2007, after the hearing, Administrative Judge LeRoy F. Foreman 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 response to two questions on his security clearance application by failing to disclose multiple debts that had been delinquent for more than 90 or 180 days. In support of that argument, Applicant contends that he failed to disclose the information because he misunderstood the scope of the questions. 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 Guideline E is 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 his indebtedness had resulted from a failed business venture approximately six years ago, and the circumstances which led to his financial problems were not likely to recur. In support of this argument, Applicant submits additional documentary evidence which was not submitted at the hearing. He also cites to several DOHA Hearing Office decisions in which an applicant in ostensibly similar circumstances was granted a clearance. Given the totality of the record evidence, Applicant’s arguments do not demonstrate that the Judge’s decision is arbitrary, capricious, or contrary to law. 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 Board gives due consideration to the Hearing Office cases which Applicant has cited in his appeal brief. However, such decisions are not binding on Hearing Office Judges or on the Board. See ISCR Case No. 05-14853 at 3 (App. Bd. Sep. 24, 2007). They do not demonstrate error in this case. See ISCR Case No. 06-18340 at 2 (App. Bd. Oct. 3, 2007). Once there has been a concern articulated regarding an applicant’s security eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the th government 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 Decision at 6. of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole.” See 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.” See ISCR Case No. 05-02833 (App. Bd. Mar.19, 2007). “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.” See ISCR Case No. 05-03143 at 3 (App. Bd. Dec. 20, 2006). 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 the 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 approximately $96,000 in outstanding debts and “ . . . had made no effort to pay any of the debts alleged, even though he had the means to do so.” 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 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board