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ISCR Case 07-09301.a1 — CASE

ISCR Case 07-09301.a1denied

Case Headnote

ISCR Case No. 07-09301.a1

Aug 22, 2008· Hon. Michael D. Hipple· appeal

Summary

An applicant, representing himself, was denied a security clearance based on concerns under Guideline D (Sexual Behavior), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct). The denial was upheld on appeal.

The core reason for the denial was the applicant's deliberate falsification of his security clearance application. The judge's initial findings were supported by substantial evidence and reasonable inferences drawn from the record. The applicant failed to demonstrate any error in this finding during the appeal process.

Ultimately, the applicant's presented mitigating evidence was deemed insufficient to alleviate the government's security concerns. The appellate judges found no harmful error in the original ruling and concluded that the decision to deny the security clearance was fully supported.

Conditions Referenced

Disqualifying

AG DraisedSexual Behavior
AG EraisedPersonal Conduct
AG JraisedCriminal 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 issuedDec 17, 2007
Answer filed—Applicant requested a decision on the written record.
Hearing held—Case decided on the written administrative record.
Decision dateAug 22, 2008

Cite For

Substantial Evidence Standard in Security Clearance Cases
Deliberate Falsification of Security Clearance Applications
Weighing of Mitigating Evidence Against 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 a denial of a security clearance based on concerns under Guidelines E, D, and J. The applicant argued that the Judge erred in finding deliberate falsification and in weighing mitigating evidence. The Board affirmed the Judge's decision, finding no harmful error and that the findings were supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMary E. Henry — denied the clearance

Decided onthe written record

Guidelines belowGuideline EGuideline DGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge did not give sufficient weight to mitigating evidence regarding positive changes in his life.
Erroneous finding of fact — raised by the applicantRejected
Applicant contended that the Judge erred in concluding he had deliberately falsified his security clearance application.
No specific harmful error alleged — raised by the applicantRejected
Applicant claimed the Judge's findings were not based on substantial evidence.

Why the Board ruled this way

The Board found that the Judge's findings were based on substantial evidence and that the applicant did not demonstrate any harmful error that would change the outcome of the case. The Judge's conclusions regarding the applicant's conduct and the weighing of mitigating evidence were deemed reasonable and sustainable.

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 D. Hipple
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 E; Guideline D; Guideline J DIGEST: The Judge’s findings are based on substantial evidence or constitute reasonable characterizations or inferences. Applicant has not demonstrated that the Judge erred. Adverse decision affirmed. CASENO: 07-09301.a1 DATE: 08/22/2008 DATE: August 22, 2008 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-09301

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 17, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline E (Personal Conduct), Guideline D (Sexual Behavior) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested that the case be decided on the written record. On May 20, 2008, after considering the record, Administrative Judge Mary E. Henry 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’s findings are based on substantial evidence; whether the Judge erred in concluding that Applicant had deliberately falsified his security clearance application; and whether the Judge’s adverse clearance decision under Guidelines D, E and J is sustainable. (1) Applicant argues that the Judge’s adverse clearance decision should be reversed because the Judge erred with respect to several of his findings about the circumstances of Applicant’s disqualifying conduct. The Board does not find this argument persuasive. The Board’s review of a Judge’s findings is limited to determining if they are supported by substantial evidence—such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record. Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620, (1966). After reviewing the record, the Board concludes that the Judge’s findings are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. Applicant has not identified any harmful error likely to change the outcome of the case. Considering the record evidence as a whole, the Judge’s material findings of security concern are sustainable. See, e.g., ISCR Case No. 06-21025 at 2 (App. Bd. Oct. 9, 2007). (2) Applicant contends that he did not deliberately falsify his security clearance application by failing to disclose that he had been asked to resign from his employment in 2004 in lieu of being terminated. In support of this contention, he argues that he misread the question at issue because he was “. . . being rushed to get the form turned in.” Applicant has not demonstrated that the Judge erred. Applicant elected to have his case decided on the written administrative record. As a result, the Judge did not have an opportunity to question him about the omission and evaluate his credibility in the context of a hearing. A review of the Judge’s decision indicates that the Judge considered Applicant’s explanation for why he failed to disclose the information in question. The Judge was not bound, as a matter of law, to accept or reject Applicant’s explanation. The Judge considered Applicant’s explanation in light of the record evidence as a whole, and concluded there was a sufficient basis to find that Applicant’s omission was deliberate and intentional. Given the limited record that was before her, the Judge’s finding of deliberate falsification is sustainable. (3) Finally, Applicant argues that the Judge’s adverse decision should be reversed because the Judge did not give sufficient weight to Applicant’s mitigating evidence as to positive changes in his life since the occurrence of the disqualifying conduct. This argument does not establish 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, 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 length 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 with respect to some of the SOR’s factual allegations. However, the Judge reasonably explained why the evidence which Applicant had presented in mitigation was insufficient to overcome the government’s 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. 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 her 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). Accordingly, the Judge’s ultimate adverse decision under Guidelines E, D and J is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Sihgned: James E. Moody James E. Moody Administrative Judge Member, Appeal Board