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ISCR Case 08-04492.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date5/20/2010
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 08-04492.h1) →
Participants
Judge: Jeffrey D. Billett, Michael Y. Ra'anan, James E. Moody
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline FFinancial Considerations · For Applicant
- Guideline GAlcohol Consumption · For Applicant
- Guideline HDrug Involvement & Substance Misuse · For Applicant
- Guideline JCriminal Conduct · For Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
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ISCR Case 08-04492.a1denied

Case Headnote

ISCR Case No. 08-04492.a1

May 20, 2010· Hon. Jeffrey D. Billett· appeal

Summary

An engineer with a bachelor's degree was denied a U.S. DOHA security clearance, a decision affirmed on appeal. The denial was primarily based on concerns under Guideline E (Personal Conduct), with additional considerations under Guidelines F (Financial Considerations), G (Alcohol Consumption), H (Drug Involvement), and J (Criminal Conduct).

The central issue was the applicant's deliberate omission of past arrests from her security clearance application. The judge specifically cited Disqualifying Condition E2.A5.2.1, which addresses deliberate misrepresentation or falsification of information.

Despite favorable findings under the other guidelines, the judge determined that the applicant's explanations for these omissions lacked credibility and failed to mitigate the concerns raised under Guideline E. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

E2.A5.2.1raisedPersonal ConductThe applicant's deliberate omissions in her application raised concerns about her personal 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 issuedFeb 27, 2009
Answer filed—
Hearing heldMar 23, 2010
Decision dateMay 20, 2010

Cite For

Deliberate Omissions in Security Clearance Applications Under Guideline E
Credibility of Applicant's Explanations Regarding Past Conduct
Standard for Granting Security Clearances Consistent 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 allegations of deliberate omissions in the application. The Applicant argued that the Judge mis-weighed the evidence regarding her state of mind. The Board affirmed the Judge's decision, finding no harmful error in the reasoning or conclusions reached.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMichael H. Leonard — denied the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline HGuideline JGuideline FGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge did not properly weigh the evidence regarding her state of mind when answering the question on the security clearance application.

Why the Board ruled this way

The Board found no error in the Judge's decision, affirming that the Judge reasonably explained the finding of deliberate omissions in the security clearance application. The evidence supported the conclusion that the Applicant had intentionally failed to disclose relevant information.

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
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 G; Guideline H; Guideline J; Guideline F; Guideline E DIGEST: Although he cleared Applicant under all but Guideline E, the Judge reasonably explained why the totality of evidence supported a finding that Applicant had deliberately omitted information from her security clearance application. Adverse decision affirmed. CASENO: 08-04492.a1 DATE: 05/20/2010 DATE: May 20, 2010 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-04492

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ronald C. Sykstus, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On February 27, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline G (Alcohol Consumption), Guideline H (Drug Involvement), Guideline J (Criminal Conduct), Guideline F (Financial Considerations), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 The Judge’s favorable findings under Guidelines G, H, J, and F are not at issue in this appeal. (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On March 23, 2010, after the hearing, Administrative Judge Michael H. Leonard denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge mis-weighed the record evidence regarding his finding that Applicant falsified her response to a question on a 2007 security clearance application (SCA). Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is an engineer working for a Defense contractor. She holds a bachelor’s degree in electrical engineering. She previously worked as an engineering intern for another company. In February 2004 Applicant was arrested and charged with unlawful possession of a controlled substance, crack cocaine. Police arrested her after discovering the cocaine in her car as she was parked to use the drug. At court the charge was deferred, conditioned upon Applicant’s reporting to the judge once a month. She complied and the charge was eventually dismissed. Applicant has also been arrested for two DWI offenses. The earlier, in May 2006, occurred when Applicant was arrested sitting in her car in the middle of an intersection. Her blood alcohol level was subsequently tested at .298 and at .20. She pled guilty, but the court deferred adjudication conditioned on Applicant’s attending Alcoholics Anonymous for six months. She complied, and the court dismissed the charge. The second incident occurred in August 2006. Applicant was arrested at a safety check point. However, the court dismissed the charge for lack of evidence because the arresting officer failed to appear. In May 2007, Applicant completed a SCA which inquired if she had ever had any drug or alcohol related arrests, charges, or convictions. Applicant listed the August 2006 DUI arrest but omitted the May DUI as well as the arrest for crack cocaine. In concluding that Applicant had deliberately falsified her SCA, the Judge considered her explanation that she misunderstood the question, believing it did not require her to report dismissed criminal charges. However, the Judge noted the clarity of the question at issue, which militates against misinterpretation. He also noted another apparent false statement, not alleged in the SOR, which he considered on the issue of Applicant’s knowledge and intent. He concluded that [t]he most likely explanation . . . is Applicant was trying to paint herself in a positive light, because she was concerned that her police record . . . might be a hindrance to obtaining a security clearance. Question 23(d) of the security clearance application required Applicant to provide a full, frank, and truthful answer about her police record and she failed to do so. And the record does not support a conclusion that her failure was due to a misunderstanding of the question or an honest mistake or simple negligence. Decision at 11. In her appeal brief, Applicant contends that the Judge did not properly weigh the evidence which she presented concerning her state of mind when answering the question at issue. She contends that the record clearly supports an honest mistake rather than deliberate falsehood. She relies on her answers to interrogatories. It should be noted that a Judge is presumed to have considered all of the record evidence. See, e.g., ISCR Case No. 07-00196 at 3 (App. Bd. Feb. 20, 2009); ISCR Case No. 07-00553 at 2 (App. Bd. May 23, 2008). In this case, the Decision demonstrates that he did so, explicitly addressing Applicant’s explanation for her omissions and the interrogatories. We conclude that the Judge reasonably explained why he found against Applicant on this issue. His finding of deliberate omissions is further buttressed by record evidence of the high quality of Applicant’s academic work in a demanding curriculum. A person with Applicant’s educational attainments and apparent intelligence would be less likely simply to have misunderstood the question. Applicant has not demonstrated that the Judge’s weighing of the record evidence is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-21819 at 2 (App. Bd. Aug. 13, 2009); ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). Applicant seeks a time-limited security clearance with probationary restrictions which she is willing to abide by in exchange for a permanent clearance subsequent to the probationary period. It is well settled that the Board has no authority to grant a conditional or probationary clearance. See, e.g., ISCR Case No. 08-04889 at 2 (App. Bd. Apr. 23, 2009); ISCR Case No. 06-22044 at 2 (App. Bd. Feb. 28, 2008); and ISCR Case No. 04-04302 at 5 (App. Bd. Jun. 30, 2005). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the 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 Judge’s adverse decision is sustainable on this record. “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).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board