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ISCR Case 06-19963.a1 — CASE

ISCR Case 06-19963.a1denied

Case Headnote

ISCR Case No. 06-19963.a1

Mar 7, 2008· Hon. Jean E. Smallin· 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 the applicant's numerous unresolved debts and the knowing provision of false information on his security clearance application.

Specifically, the applicant failed to disclose a felony charge related to credit card misuse. These issues were identified as disqualifying conditions under Adjudicative Guidelines Paragraphs 15 and 20.

The Appeal Board affirmed the adverse decision, finding no error in the Judge's conclusions regarding the applicant's personal conduct and financial considerations. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

Key Rule Quoted

“The Judge has drawn "a rational connection between the facts found" under Guideline E and his adverse decision.”
— Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)

Procedural Posture

SOR issuedMar 28, 2007
Answer filed—
Hearing heldNov 28, 2007
Decision dateMar 7, 2008

Cite For

Affirmation of Adverse Decision Based on False Information in Security Clearance Application
Unresolved Debts as a Basis for Denial Under Guideline F
Rational Connection Required Between Facts and Adverse Decisions Under Guideline E

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 security concerns under Guideline F and E. The Applicant argued that the Judge erred in concluding he knowingly provided false information and that the failure to mitigate concerns was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMartin H. Mogul — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge erred in concluding that Applicant knowingly provided false information on his security clearance application and to an interviewer.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge’s failure to mitigate the Guideline F and E security concerns was arbitrary, capricious, and contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's conclusions regarding the Applicant's provision of false information and the failure to mitigate security concerns under Guideline E. The adverse decision was affirmed based on substantial evidence and rational connection to the facts.

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 F; Guideline E DIGEST: The Judge’s adverse conclusions under Guideline E are sustainable based on this record. Adverse decision affirmed. CASENO: 06-19963.a1 DATE: 03/07/2008 DATE: March 7, 2008 In Re: -------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-19963

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 March 28, 2007, 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 November 28, 2007, after the hearing, Administrative Judge Martin H. Mogul denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issues on appeal: whether the Judge erred in concluding that Applicant knowingly provided false information on his security clearance application (SCA) and to an interviewer; and whether the Judge’s failure to mitigate the Guideline F and E security concerns was arbitrary, capricious, and contrary to law. Finding no error, we affirm. The Judge found that Applicant had numerous unresolved debts. He found that Applicant stated “no” on his SCA when asked if he had debts that had been delinquent for 90 and 180 days respectively and that these answers were not true. The Judge found that Applicant had been charged with a felony offense arising from his misuse of another person’s credit card. Applicant answered “no” to a question on his SCA inquiring as to whether he had ever been charged or convicted of a felony offense, and during an interview he failed to disclose the full extent of this misuse. The Board has examined the Judge’s decision in light of the record has a whole. The Judge’s conclusion that Applicant knowingly provided false information is sustainable. Furthermore, the Judge has drawn “a rational connection between the facts found”under Guideline E and his adverse decision. See Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). Accordingly, the Judge’s adverse decision under Guideline E is neither arbitrary, capricious, nor contrary to law. In light of this holding, the Board need not address the Guideline F security concerns.

ORDER

The Judge’s adverse security clearance decision 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