CASEClearance Adjudication Search EngineCASE

Loading case…

ISCR Case 06-24669.a1 — CASE

ISCR Case 06-24669.a1denied

Case Headnote

ISCR Case No. 06-24669.a1

Mar 14, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance primarily due to deliberate falsification of his application under Guideline E (Personal Conduct). The judge found the applicant's explanations for failing to disclose unfavorable information to be implausible and insufficient to mitigate the security concerns. Specifically, the evidence established deliberate falsification, leading to the application of Disqualifying Condition E2.

While the applicant received a favorable finding under Guideline F (Financial Considerations), with Mitigating Condition F3 applied, this did not outweigh the concerns under Guideline E. The judge concluded that the applicant failed to demonstrate mitigation of the security concerns raised by his conduct.

The appeal board affirmed the denial, underscoring the applicant's responsibility for accurate disclosures on his security clearance application. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

E2raisedDeliberate FalsificationThe applicant's failure to disclose unfavorable information was found to be deliberate.

Mitigating

F3appliedLengthy ServiceThe applicant's lengthy military and civilian service was considered but deemed insufficient to mitigate the concerns.

Key Rule Quoted

“Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.”
— Directive ¶ E3.1.15.

Procedural Posture

SOR issuedMay 2, 2007
Answer filed—
Hearing heldOct 29, 2007
Decision dateMar 14, 2008

Cite For

Deliberate Falsification of Security Clearance Applications Under Guideline E
Burden of Proof Shifts to Applicant to Establish Mitigation After Government Raises Security Concerns
Consideration of Mitigating Evidence in Light of Disqualifying Conduct

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 who was denied a security clearance due to findings of deliberate falsification on his application and unresolved security concerns under Guideline E. The applicant argued that the Judge erred in his conclusions regarding the nature of the falsification and the mitigation of security concerns. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMatthew E. Malone — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Erroneous finding of fact — raised by the applicantRejected
Applicant contends that the Judge erred in concluding his falsification of his security clearance application was deliberate.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argues that the Judge erred by concluding that the security concerns raised under Guideline E had not been mitigated.

Why the Board ruled this way

The Board found that the Judge's findings of deliberate falsification were supported by substantial evidence and that the Judge appropriately weighed the mitigating evidence against the unfavorable evidence. The Board affirmed the Judge's decision as not arbitrary or capricious.

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
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: Applicant offered explanations for his failure to disclose unfavorable information of security concern on his security clearance application. The Judge appropriately considered those explanations in light of the record evidence as a whole. Applicant has not demonstrated that the Judge’s finding of deliberate falsification is error. Adverse decision affirmed. CASENO: 06-24669.a1 DATE: 03/14/2008 DATE: March 14, 2008 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-24669

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 May 2, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). The SOR was The Judge found in favor of Applicant under Guideline F. That favorable finding is not at issue on appeal. As part of his appeal, Applicant submits evidence which was not considered in the proceeding below. The Board cannot consider new evidence on appeal. Directive ¶ E3.1.29. Decision at 3. Id at 10. subsequently amended to add allegations under Guideline E (Personal Conduct). Applicant requested a hearing. On October 29, 2007, after the hearing, Administrative Judge Matthew E. Malone 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 erred by concluding that the security concerns raised under Guideline E had not been mitigated.1 (1) Applicant contends that he did not deliberately falsify his security clearance application (SF-86) by failing to disclose unfavorable information of security concern in response to four different questions. In support of this contention, he argues that when he was updating his SF-86, he was advised by his facility security officer (FSO) to only correct specific information and sign the final page, and to not provide any additional adverse information. As a result, Applicant believes he is being made a “scapegoat to others not doing their job.” Applicant’s argument does not demonstrate that the Judge erred. In his findings of fact, the Judge noted that Applicant had “. . . held security clearances up to and including TS/SCI continuously since 1989.” He then appropriately considered Applicant’s explanation for why he failed to disclose the information in question in light of the record evidence as a whole. Based on this assessment, the Judge reasonably concluded that Applicant’s claims to have relied on the guidance of his FSO were implausible: “Having extensive experience in the clearance process, Applicant knew or should have known he was responsible for his answers and statements made to the government. His assertion that an FSO knew of certain changes to be made in Applicant’s questionnaire and directed those changes, but somehow limited Applicant from updating possible adverse information, taken together with all of the evidence of his delinquent debts, is simply untenable and strains credulity.” On this record, the Judge’s findings of deliberate falsification are sustainable. See Directive ¶ E3.1.32.1; ISCR Case No. 04-03849 at 2-3 (App. Bd. Jan. 26, 2006). (2) Applicant also contends that the Judge erred in concluding that the security concerns raised by his falsifications had not been mitigated, based upon the favorable record evidence, particularly his lengthy military and civilian service, his many years of holding a security clearance without adverse incident, and his favorable life changes since 2003. Again, Applicant has not demonstrated that the Judge erred. Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. 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. See, e.g., ISCR Case No. 06-17691 at 3 (App. Bd. Jul.19, 2003). 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 weighed the mitigating evidence offered by Applicant against the recency and seriousness of the disqualifying conduct, and considered the possible application of relevant mitigating conditions and whole person factors. The Judge found in favor of Applicant under Guideline F. However, the Judge reasonably explained why the evidence which Applicant had presented in mitigation was insufficient to overcome the government’s other security concerns. The Board does not review a case de novo. 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). Given the record that was before him, the Judge’s ultimate unfavorable clearance decision under Guideline E 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