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ISCR 08-03479.a1: Guideline E security clearance appeal, denied (2009) · CASE

ISCR Case 08-03479.a1denied

Case headnote

ISCR Case No. 08-03479.a1

Feb 17, 2009· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance due to issues under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from the applicant's deliberate falsification of his security clearance application, specifically his failure to disclose pertinent information.

The judge found that the applicant did not demonstrate any error in the findings regarding his application. Consequently, the appeal board affirmed the denial, concluding that the judge's decision was neither arbitrary nor capricious and was consistent with national security interests.

The denial was based on disqualifying conditions E2.A5.1 and F2.A1.1, which relate to deliberate misrepresentation and financial irresponsibility, respectively.

Conditions referenced

Disqualifying

E2.A5.1raisedDeliberate Falsification
F2.A1.1raisedFinancial Considerations

Key rule quoted

“A Judge’s weighing of the evidence will not be overturned unless it is arbitrary, capricious, or contrary to law.”

Procedural posture

SOR issuedJun 23, 2008
Answer filed—
Hearing heldDec 8, 2008
Decision dateFeb 17, 2009

Cite for

Deliberate Falsification of Security Clearance Applications Under Guideline E
Standards for Weighing Evidence in Security Clearance Cases
Affirmation of Adverse Decisions When Aligned 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 financial considerations and personal conduct. The applicant argued that the Judge erred in finding deliberate falsification of his application. The Board affirmed the Judge's decision, finding no harmful error in the ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDarlene Lokey Anderson denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant contended that the Judge erred in concluding that he deliberately falsified his security clearance application.

Why the Board ruled this way

The Board found that the Judge's decision was not arbitrary, capricious, or contrary to law, and that the evidence supported the finding of deliberate falsification.

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
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 F; Guideline E DIGEST: A Judge’s weighing of the evidence will not be overturned unless it is arbitrary, capricious, or contrary to law. Adverse decision affirmed. CASENO: 08-03479.a1 DATE: 02/17/2009 DATE: February 17, 2009 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-03479

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 June 23, 2008, DOHA issued a statement of reasons (SOR) advising Applicant 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 a hearing. On December 8, 2008, after the hearing, Administrative Judge Darlene Lokey Anderson 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 erred in concluding that The Judge’s favorable finding under Guideline F is not at issue on appeal. Applicant requests a “compromise” in which he would be allowed to retain a security clearance so that he can continue to be employed, even if he is not allowed the same level of access (or any access) that he had previously held. Under Directive ¶ 3.2, there is no authority to deny a clearance at one level but grant a clearance at a lower one. “An unfavorable clearance decision denies any application for a security clearance and revokes any existing security clearance, thereby preventing access to classified information at any level and the retention of any existing security clearance.” Id.; See ISCR Case No. 94-0947 at 5 (App. Bd. Oct. 12, 1995). Applicant’s falsification of his security clearance application was deliberate.1 Applicant contends that he did not deliberately falsify his security clearance application by failing to disclose information of security concern in response to four different questions. Applicant has not demonstrated that 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. A review of the decision indicates that the Judge reasonably considered Applicant’s explanation for why he failed to disclose the information in question in light of the record evidence as a whole. Given the record that was before her, the Judge’s finding of deliberate falsification is sustainable. See Directive ¶ E3.1.32.1; ISCR Case No. 04-03849 at 2-3 (App. Bd. Jan. 26, 2007). 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 adverse decision under Guideline E is not arbitrary, capricious or contrary to law.2

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: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board