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ISCR Case 07-00463.a1 — CASE

ISCR Case 07-00463.a1denied

Case Headnote

ISCR Case No. 07-00463.a1

Jan 12, 2009· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, represented by counsel, was denied a security clearance due to serious concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The primary reason for the denial was the applicant's falsification of material facts during interviews with a government investigator and in a signed sworn statement.

The judge identified some mitigating evidence, specifically applying a condition under AG ¶ 20. However, this evidence was deemed insufficient to outweigh the disqualifying conduct, particularly the deliberate falsification of information. The judge's decision highlighted the gravity of the applicant's actions, citing disqualifying conditions under AG ¶ 15 and AG ¶ 16.

The denial was upheld on appeal, with the appellate authority affirming the judge's rationale. The final determination concluded that the applicant's conduct, especially the falsification of material facts, presented an unacceptable risk to national security, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 16raisedFalsification of Material Facts
AG ¶ 15raisedCriminal Conduct

Mitigating

AG ¶ 20appliedMitigating Evidence PresentedThe judge weighed the mitigating evidence against the seriousness of the disqualifying conduct.

Key Rule Quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedFeb 28, 2008
Answer filed—
Hearing heldOct 22, 2008
Decision dateJan 12, 2009

Cite For

Weighing of Mitigating Evidence Against Disqualifying Conduct Under Guidelines E and J
Insufficiency of Mitigating Evidence to Overcome Serious Security Concerns
Standards for Granting Security Clearance Consistent with National Security Interests

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 Guidelines E and J. The applicant argued that the Judge's decision was arbitrary and capricious, claiming insufficient weight was given to mitigating evidence. The Board affirmed the Judge's decision, finding no harmful error in the weighing of evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRoger C. Wesley — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline EGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge’s adverse decision is arbitrary, capricious or contrary to law.

Why the Board ruled this way

The Board found that the Judge reasonably weighed the mitigating evidence against the seriousness of the disqualifying conduct and articulated a satisfactory explanation for his decision, affirming the denial of the security clearance.

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
Jeffrey D. Billett
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

KEYWORD: Guideline E; Guideline J DIGEST: The Judge weighed the mitigating evidence against the seriousness of the disqualifying conduct. The Judge found in favor of Applicant as to some of the allegations and reasonably explained why the mitigating evidence was insufficient to overcome the security concerns raised by others. Adverse decision affirmed. CASENO: 07-00463.a1 DATE: 01/12/2009 DATE: January 12, 2009 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-00463

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Alan V. Edmunds, Esq. Applicant’s Brief at 5. Id. The Judge’s favorable findings as to SOR paragraphs 1(h)-(j) are not at issue on appeal. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On February 28, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On October 22, 2008, after the hearing, Administrative Judge Roger C. Wesley 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 issue on appeal: whether the Judge’s adverse clearance decision is arbitrary, capricious or contrary to law. Applicant contends that the Judge’s adverse decision should be reversed because the Judge did not give sufficient weight to Applicant’s mitigating evidence. Specially, he argues that, although he falsified material facts in two interviews with a government investigator and in a signed sworn statement, “[b]ythe completion of the investigating process, [he] had made a good-faith effort to correct earlier omissions.” He also argues that the disqualifying conduct is not likely to recur in the future, and that “ . . . the threat of exploitation, manipulation, or duress ha[s] been greatly reduced.”2 Applicant has not demonstrated that the Judge decision is arbitrary, capricious or contrary to law. 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. 06-10320 at 2 (App. Bd. Nov. 7, 2007). 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, e.g., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). In this case, the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. He found in favor of Applicant with respect to several of the SOR factual allegations. However, the Judge reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. The favorable 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. 06-11172 at 3 (App. Bd. Sep. 4, 2007). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for his decision, “including a ‘rational connection between the facts found and the choice made.’” 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)). “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). Therefore, the Judge’s ultimate unfavorable security clearance decision under Guidelines E and J 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: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board