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ISCR Case 07-05304.a1 — CASE

ISCR Case 07-05304.a1denied

Case Headnote

ISCR Case No. 07-05304.a1

May 23, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance due to deliberate falsifications on his security clearance questionnaires. The denial was based on concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct).

Specifically, the applicant intentionally misrepresented his marijuana use on the questionnaires. The judge determined that the applicant's subsequent admissions of these falsifications were neither prompt nor sufficient to mitigate the security concerns raised by his initial dishonest conduct.

Consequently, the applicant's request for a security clearance was denied, with the deliberate falsification regarding marijuana use being the primary disqualifying factor.

Conditions Referenced

Disqualifying

AG ¶ 16raisedDeliberate Falsification
AG ¶ 15raisedCriminal Conduct

Key Rule Quoted

“Once a concern arises regarding an Applicant’s security clearance 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 issuedSep 21, 2007
Answer filed—
Hearing heldFeb 12, 2008
Decision dateMay 23, 2008

Cite For

Deliberate Falsification of Security Clearance Questionnaires Under Guideline E and J
The Burden of Persuasion Shifts to the Applicant After the Government Raises Security Concerns
The Presumption Against Granting a Security Clearance When Concerns Arise

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 deliberate falsifications on his security clearance questionnaires. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRobert J. Tuider — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant asserts the Judge failed to analyze his case under the whole person concept.

Why the Board ruled this way

The Board found no error in the Judge's decision, affirming that the Judge's findings were sustainable and that the adverse decision was not arbitrary, capricious, or contrary to law.

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
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

KEYWORD: Guideline E; Guideline J DIGEST: The Judge found that Applicant had deliberately falsified his two security clearance questionnaires. After the government presents evidence raising security concerns the burden shifts to the applicant to rebut or mitigate those concerns. Adverse decision affirmed. CASENO: 07-05304.a1 DATE: 05/23/2004 DATE: May 23, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-05304

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se Applicant asserts the Judge failed to analyze his case under the whole person concept. In fact, the Judge discussed Applicant’s case in light of the whole person concept in an entire page of his decision. See Decision at 9. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On September 21, 2007, 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 February 12, 2008, after the hearing, Administrative Judge Robert J. Tuider denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse decision is arbitrary, capricious, and contrary to law. Finding no error, we affirm. The Judge found that Applicant had deliberately falsified his two security clearance questionnaires. On a questionnaire submitted in 1994, Applicant had deliberately failed to disclose that he had used marijuana prior to 1994. On a questionnaire submitted in 2005, Applicant had deliberately failed to disclose that he had used marijuana, with varying frequency including three to four times a week, from about 2000 to about July 2003. He had also deliberately failed to disclose that he had used marijuana in April 2004 and while holding a security clearance in 1994 on that latter application. Applicant had subsequently admitted to the falsifications. However, in reaching his adverse clearance decision, the Judge noted that although Applicant’s subsequent disclosure “ . . . may have been forthright, it cannot be considered prompt. While [he gave] Applicant some credit for coming forward, that credit [was] diluted by several factors.” Decision at 7. Once a concern arises regarding an Applicant’s security clearance 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 government presents th evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The Board has examined the decision in light of the record as a whole. Given his sustainable findings, the Judge’s conclusion that Applicant had not met his burden of persuasion that it is “clearly consistent with the interests of the national security” for him to have a clearance is likewise sustainable. See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 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). Accordingly, the Judge’s ultimate unfavorable security clearance decision under Guidelines E and J is not 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