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ISCR Case 08-12167.a1 — CASE

ISCR Case 08-12167.a1denied

Case Headnote

ISCR Case No. 08-12167.a1

Jul 16, 2010· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance due to significant unmitigated security concerns under Guidelines E (Personal Conduct), F (Financial Considerations), and J (Criminal Conduct). The denial was based on the applicant's deliberate omissions regarding multiple arrests, financial issues, and alcohol-related conduct.

Specifically, the applicant failed to disclose several arrests for alcohol-related conduct. He also did not provide information about a bankruptcy action and various delinquent debts. These omissions were found to be deliberate, motivated by the applicant's concern that disclosing this information would jeopardize his security clearance.

The appeal board affirmed the denial, concluding that the judge's findings and rationale were sound. The applicant's failure to disclose critical information and mitigate the associated security risks ultimately led to the denial of his security clearance.

Conditions Referenced

Disqualifying

AG ¶ 16raisedCriminal Conduct
AG ¶ 20raisedFinancial Considerations
AG ¶ 14raisedPersonal 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 issuedAug 12, 2009
Answer filed—
Hearing heldApr 20, 2010
Decision dateJul 16, 2010

Cite For

Security Concerns Related to Financial Issues Under Guideline F
Security Concerns Arising From Criminal Conduct Under Guideline J
The Importance of Full Disclosure in Security Clearance Applications Under Guideline E

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 was from an adverse security clearance decision by Administrative Judge Mary E. Henry, which was based on security concerns under Guidelines F, J, and E. The Applicant argued that the Judge's findings were not supported by substantial evidence and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMary E. Henry — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline JGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantError found, but harmless
The Judge erred in finding that the Applicant had been arrested for criminal offenses four times during 2002.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Judge's material findings of security concern are supported by substantial record evidence. The Board found no harmful error in the Judge's decision.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

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 DIGEST: The Judge’s material findings of security concern are supported by substantial record evidence. Adverse decision affirmed. CASENO: 08-12167.a1 DATE: 07/16/2010 DATE: July 16, 2010 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-12167

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Judge’s favorable findings under Guidelines F and J are not at issue in this appeal. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 12, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations), Guideline J (Criminal Conduct), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On April 20, 2010, after the hearing, Administrative Judge Mary E. Henry 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 certain of the Judge’s findings of fact were supported by substantial record evidence and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge found that Applicant failed to provide information relevant to the processing of his application for a clearance. These omissions concerned: (1) several arrests for alcohol-related conduct; (2) a bankruptcy action; (3) alcohol treatments while in the Army; and (4) information about delinquent debts. Applicant was aware of his responsibility to provide the information. He admitted that he did not do so due to concern that he could lose his security clearance. The Judge concluded that Applicant had failed to mitigate the security concerns arising from his deliberate omissions. Applicant contends that the Judge erred in finding that he had been arrested for criminal offenses four times during 2002. He states that two of the incidents involved merely the issuance of citations rather than actual arrests. We have examined the Judge’s findings in light of the record as a whole. The challenged findings are supported by Applicant’s admissions to the SOR. Even if erroneous, they are not likely to have affected the outcome of the case. Therefore, any error is harmless. See ISCR Case No. 08-07528 at 2 (App. Bd. Dec. 29, 2009). Considering the record evidence as a whole, the Judge’s material findings of security concern are supported by substantial evidence and are sustainable. See, e.g., ISCR Case No. 07-13491 at 2 (App. Bd. Jul. 18, 2008). See Directive ¶ E3.1.32.1. (Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.”) Applicant’s appeal brief cites to record evidence of his good work performance. However, 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). Applicant’s brief has not rebutted that presumption. In support of his appeal, Applicant has submitted evidence not contained in the record, e.g., information concerning his post-hearing conduct. We cannot consider this new evidence. See Directive ¶ E3.1.29. (“No new evidence shall be received or considered by the Appeal Board.”) See also ISCR Case No. 08-06875 at 2 (App. Bd. Oct. 29, 2009). 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: 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