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ISCR Case 07-09546.a1 — CASE

ISCR Case 07-09546.a1denied

Case Headnote

ISCR Case No. 07-09546.a1

Jun 6, 2008· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The judge identified a history of financial problems and deliberate falsification of information on the applicant's eQIP.

Specifically, the applicant admitted to falsifying information on his eQIP without providing an explanation. Additionally, the judge found a lengthy and serious history of financial issues that remained unresolved at the time of the decision. These issues raised disqualifying conditions under both guidelines.

While the applicant presented mitigating evidence, it was deemed insufficient to overcome the government's security concerns. Consequently, the judge concluded that the applicant's mitigating evidence did not alleviate the security risks posed by the admitted falsification and the ongoing financial difficulties, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 16raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

Mitigating

AG ¶ 20rejectedFinancial ConsiderationsThe judge found the applicant's financial issues were not under control.
AG ¶ 17rejectedPersonal ConductThe judge found the applicant's explanation for the falsification insufficient.

Key Rule Quoted

“Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.”

Procedural Posture

SOR issuedNov 3, 2007
Answer filed—
Hearing held—Decided on written record.
Decision dateJun 6, 2008

Cite For

Deliberate Falsification of Information on Eqip Under Guideline E
Serious Financial Issues Under Guideline F
Insufficient Mitigating Evidence to Overcome Security Concerns.

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 a security clearance who was denied due to concerns under Guidelines F and E. The applicant argued that the Judge did not adequately consider his mitigating evidence and that his omissions on the eQIP were mistakes rather than deliberate falsifications. The Board affirmed the Judge's decision, finding no harmful error in the weighing of evidence or the conclusions reached.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran — denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline E

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 his mitigating evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse decision was arbitrary and capricious.

Why the Board ruled this way

The Board found that the Judge's findings of deliberate falsification were sustainable and that the evidence in mitigation was insufficient to overcome the government's security concerns. The Judge reasonably weighed the evidence and articulated a satisfactory explanation for the decision.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Jean E. Smallin
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: Given the limited information that was available to Judge, his finding of deliberate falsification is sustainable. The Judge reasonably explained why the evidence in mitigation was insufficient to overcome the government’s security concerns. Adverse decision affirmed. CASENO: 07-09546.a1 DATE: 06/06/2008 DATE: June 6, 2008 In Re: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-09546

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 November 3, 2007, DOHA issued a statement of reasons (SOR) advising Applicant In his appeal brief, Applicant offers new evidence in the form an explanation as to the circumstances surrounding his preparation of his eQIP. The Board may not consider this new evidence on appeal. See Directive ¶ E3.1.29. of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) and Guideline E (Personal 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 March 6, 2008, after considering the record, Administrative Judge Edward W. Loughran 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 under Guidelines F and E is sustainable. Applicant argues that the Judge’s adverse decision should be reversed because the Judge did not give sufficient weight to Applicant’s mitigating evidence which he asserts shows that he now has an adequate plan for resolving his financial problems. He also argues that there is no danger that he will disclose sensitive information, and that his failure to list five unpaid debts on his Electronic Questionnaire for Investigations Processing (eQIP) was the result of a mistake, not a deliberate falsification. Applicant’s arguments do not establish the Judge erred. Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. 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 his Answer to the SOR, Applicant admitted to the falsification of his (eQIP) without explanation. He elected to have his case decided on the written administrative record, and in his respond to the government’s file of relevant material (FORM) offered no explanation for the omissions. As a result, the Judge did not have an opportunity to question him about the omissions and evaluate his credibility in the context of a hearing. Given the limited record that was before him, the Judge’s finding of deliberate falsification is sustainable, and his ultimate unfavorable clearance decision under Guideline E is not arbitrary, capricious or contrary to law. See Directive ¶ E3.1.32.1; ISCR Case No. 06-26061 at 2 (App. Bd. Mar. 17, 2008). With respect to the Guideline F allegations, the Judge made sustainable findings that Applicant had a lengthy and serious history of not meeting financial obligations. At the time the case was submitted for decision, Applicant still had a significant amount of overdue indebtedness that he was trying to clear up, and had only recently been accepted into a credit card assistance program. In light of the foregoing, the Judge could reasonably conclude that: “[i]tis too early in the process to know if Applicant will adhere to the program. There are not yet clear indications that the problem is being resolved or is under control.” Decision at 6. 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. The Judge found in favor of Applicant as to several of the SOR 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 2 (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). Therefore, the Judge’s ultimate unfavorable security clearance decision under Guideline F is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, 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