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ISCR 06-22628.a1: Guideline E security clearance appeal, denied (2007) · CASE

ISCR Case 06-22628.a1denied

Case headnote

ISCR Case No. 06-22628.a1

Oct 30, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing herself, was denied due to concerns under Guideline J (Criminal Conduct) and Guideline E (Personal Conduct). The denial stemmed from the applicant's involvement in six criminal offenses between 1997 and 2003, which she failed to disclose on her SF-86 security clearance application.

The judge determined that the applicant's omission of these criminal charges on her SF-86 was deliberate and intentional. The applicant's explanation for these omissions was found not credible, leading to the application of disqualifying conditions J1 and E2.

Consequently, the applicant's appeal was denied, and her security clearance was not granted.

Conditions referenced

Disqualifying

J1raisedCriminal Conduct Is a Disqualifying Condition.
E2raisedDeliberate Omission of Information on the Security Clearance Application.

Key rule quoted

“The Board must give deference to the Judge’s credibility determinations.”
Directive ¶ E3.1.32.1

Procedural posture

SOR issuedDec 13, 2006
Answer filed—
Hearing heldMay 29, 2007
Decision dateOct 30, 2007

Cite for

Deliberate Falsification of Security Clearance Application Under Guideline E
Deference to Credibility Determinations by the Administrative Judge
Failure to Disclose Criminal Conduct as a Basis for Denial Under Guideline J

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 an applicant seeking to overturn an Administrative Judge's denial of a security clearance based on criminal conduct and personal conduct. The applicant argued that the decision was arbitrary and capricious, citing a similar case and restating her testimony. The Board affirmed the denial, finding no harmful error in the Judge's decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJuan J. Rivera denied the clearance

Decided ona hearing

Guidelines belowGuideline JGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argued that the Administrative Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Administrative Judge's decision, affirming the denial of the security clearance based on substantial evidence and proper procedures.

Standard of review applied

No new evidence on appealDeference to the judge’s credibility callsArbitrary-and-capricious review

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 J; Guideline E DIGEST: Hearing Office decisions in other cases are not binding on the Board or on other Hearing Office Judges. Adverse decision affirmed. CASENO: 06-22628.a1 DATE: 10/30/2007 DATE: October 30, 2007 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-22628

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 December 13, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline J (Criminal Conduct) and The SOR was subsequently amended on the motion of the government. Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992), as amended (Directive). Applicant requested a hearing. On May 29, 2007, after the hearing, Administrative Judge Juan J. Rivera denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Administrative Judge’s decision is arbitrary, capricious, or contrary to law. In her appeal brief, Applicant states that she feels she did not present sufficient information at the hearing as to why she did not list the criminal charges against her in her Security Clearance Application (SF-86). She therefore restates her testimony on that issue. She cites a Hearing Office decision in a case she believes is similar to hers. In that case, the applicant was granted a clearance. She also submits three letters of recommendation from supervisors. To the extent that Applicant provides any evidence on appeal that was not presented at the hearing, the Board cannot consider it, since the Directive does not allow consideration of new evidence on appeal. See Directive ¶ E3.1.29. This applies to any additions to Applicant’s testimony and the three letters of recommendation. Moreover, Hearing Office decisions in other cases are not binding on the Board or on other Hearing Office judges. Therefore, Applicant’s ability to cite a Hearing Office decision in another case that appears to support Applicant’s position does not demonstrate that the Judge’s decision in this case is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 02-24062 at 4 (App. Bd. Jan. 31, 2005). With regard to Applicant’s restatement of her testimony, there is no indication in the transcript that Applicant was prevented during the hearing from presenting her explanation of her failure to disclose her criminal conduct on her SF-86. Moreover, the Judge included Applicant’s explanation in his decision, although it is clear from the decision that the Judge did not find Applicant’s explanation credible. Under the Directive, the Board must give deference to the Judge’s credibility determinations. See Directive ¶ E3.1.32.1. The Judge found that Applicant was involved in six criminal offenses between 1997 and 2003 and that she falsified her SF-86. The Judge had the opportunity to consider Applicant’s explanation for her failure to disclose the information in question on her SF-86. The Judge was not bound, as a matter of law, to accept Applicant’s explanation. See, e.g., ISCR Case No. 05-01676 at 2 (App. Bd. Jun. 11, 2007). The Judge considered Applicant’s explanation in light of the 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. Applicant has not demonstrated that the Judge’s decision is arbitrary, capricious, or contrary to law.

ORDER

The Judge’s adverse security clearance decision 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