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ISCR Case 07-15434.a1 — CASE

ISCR Case 07-15434.a1denied

Case Headnote

ISCR Case No. 07-15434.a1

Jan 15, 2009· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing himself, was denied a security clearance based on concerns under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The denial stemmed from the applicant's deliberate falsification of his security clearance application.

Specifically, the applicant failed to disclose his employment with the Saudi Arabian Ministry of Education and his possession of an expired Syrian passport. The judge determined that these omissions were intentional and that the applicant's explanations for them were not credible.

Consequently, the judge found that the applicant did not provide sufficient mitigating evidence to address the security concerns raised by the government. The applicant's deliberate misrepresentations regarding his foreign employment and passport information led to the denial of his security clearance.

Conditions Referenced

Disqualifying

AG BraisedForeign Influence
AG EraisedPersonal 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 issuedMay 1, 2008
Answer filed—
Hearing held—Decided on written record.
Decision dateJan 15, 2009

Cite For

Deliberate Falsification of Security Clearance Application Under Guideline E
Insufficient Mitigating Evidence Against Disqualifying Conduct Under Guidelines B and E
Burden of Proof Shifts to Applicant to Establish Mitigation After Government Raises 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 findings of deliberate falsification on his application. The applicant argued that the Judge erred in this conclusion and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding the conclusions sustainable based on the evidence presented.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowClaude R. Heiny — denied the clearance

Decided onthe written record

Guidelines belowGuideline BGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge erred in concluding that he had deliberately falsified his security clearance application.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board concluded that the Judge's findings of deliberate falsification were sustainable based on the record, and the Judge reasonably weighed the evidence presented by the Applicant against the seriousness of the disqualifying conduct.

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
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 B: Guideline E DIGEST: The Judge’s finding of deliberate falsification are sustainable given the record. Adverse decision affirmed. CASENO: 07-15434.a1 DATE: 01/15/2009 DATE: January 15, 2009 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-15434

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 1, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). The SOR was later amended to add allegations under Guideline E (Personal Conduct). Applicant requested that the case be decided on the written record. On November 10, 2008, after considering the record, Administrative Judge Claude R. Heiny 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 that Applicant had deliberately falsified his security clearance application and whether the Judge’s adverse clearance decision is arbitrary, capricious or contrary to law. Applicant does not challenge the Judge’s adverse decision under Guideline B. As to the Guideline E allegations, Applicant contends that he did not deliberately falsify his security clearance application by failing to disclose that he had been employed by the Saudi Arabian Ministry of Education and that he possessed an expired Syrian passport. In support of this contention, he argues that he was confused by the questions that asked for the disclosure of the aforesaid information. Applicant’s argument does not demonstrate 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 omissions 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 as to 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 omissions were deliberate and intentional. Given the record that was before him, the Judge’s finding of deliberate falsification is sustainable.

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 limited mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct and considered the possible application of relevant mitigating conditions and whole-person factors. He 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. 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). Accordingly, the Judge’s ultimate adverse decision under Guidelines B and 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: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board