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ISCR Case 09-00568.a1 — CASE

ISCR Case 09-00568.a1denied

Case Headnote

ISCR Case No. 09-00568.a1

Oct 22, 2010· Hon. Jean E. Smallin· appeal

Summary

A retired U.S. Air Force member was denied a security clearance under Guideline E (Personal Conduct) due to deliberate falsifications on his security clearance applications. The applicant failed to disclose non-judicial punishment and psychiatric treatment, which raised significant security concerns.

The applicant's explanations for these omissions were deemed insufficient to mitigate the concerns. The adjudicators found that the deliberate nature of the falsifications, specifically citing disqualifying conditions E2.A5.1.2 and E2.A5.2.1, outweighed any mitigating factors presented.

Consequently, the appeal was denied, and the security clearance was not granted.

Conditions Referenced

Disqualifying

E2.A5.1.2raisedDeliberate Omission of Material Facts
E2.A5.2.1raisedPersonal Conduct That Creates a Security Risk

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 issuedMar 18, 2010
Answer filed—
Hearing heldAug 17, 2010
Decision dateOct 22, 2010

Cite For

Deliberate Falsification of Security Clearance Applications Under Guideline E
Insufficient Mitigation of Security Concerns Related to Personal Conduct
Affirmation of Adverse Decisions Based on Credibility Assessments

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 regarding the denial of a security clearance based on alleged deliberate omissions in security clearance applications. The Board affirmed the Judge's decision, finding that the Judge's conclusions were supported by substantial evidence and articulated a satisfactory explanation for the decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowLeRoy F. Foreman — denied the clearance

Decided ona hearing

Guidelines belowGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge erred in finding that his omissions to his security clearance applications were deliberate.

Why the Board ruled this way

The Judge’s material findings of fact are sustainable and support his ultimate adverse conclusions. The Board found no harmful error in the Judge's decision.

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

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 E DIGEST: The Judge’s material findings of fact are sustainable and support his ultimate adverse conclusions. Adverse decision affirmed. CASENO: 09-00568.a1 DATE: 10/22/2010 DATE: October 22, 2010 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-00568

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 March 18, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On August 17, 2010, after the hearing, Administrative Judge LeRoy F. Foreman denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge erred in finding that his omissions to his security clearance applications (SCA) were deliberate. Consistent with the following discussion, we affirm the decision of the Judge. The Judge made the following pertinent findings of fact: Applicant served in the U.S. Air Force, retiring in 2005. Earlier, in 2000, he had received non-judicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for knowing possession of child pornography. This disciplinary action was the result of evidence found during a search by criminal investigators of Applicant’s personal computer. After the search, Applicant consulted with a psychologist regarding his concerns about his internet viewing habits. Soon after this, Applicant visited a psychiatrist, due to stress and depression regarding the criminal investigation, his father’s death, and the breakup of his marriage. In 2003, Applicant completed a SCA. He answered “no” to a question inquiring if he had consulted a mental health professional within the previous seven years. He also answered “no” to a question inquiring if, within the previous seven years, he had been punished under the UCMJ, to include non-judicial punishment. Both of these answers were false. In 2004, after his security manager pointed out these omissions, Applicant submitted a document correcting the errors in his SCA. In 2005, anticipating retirement, Applicant applied for jobs as a policeman and as a correctional officer. He was rejected, because he did not disclose his non-judicial punishment to his prospective employers. Later in 2005, before his retirement, Applicant underwent a psychiatric evaluation. The psychiatrist concluded that (1) Applicant did not have a mental disorder and (2) his records were not sufficient to clearly substantiate knowing possession of child pornography. In September 2008, Applicant submitted another SCA. He answered “no” to a question inquiring if he had consulted a mental health professional during the previous seven years. This answer was false. Applicant’s omissions on his 2003 and 2008 SCAs were alleged in the SOR as Guideline E security concerns.1 In the Analysis portion of the decision, the Judge found that the “no” answers described above were deliberate. The Judge stated that, when he completed the SCAs in question, Applicant was an experienced NCO, had worked through the security clearance process before, and had previously held a clearance. The Judge also considered Applicant’s failure to advise his prospective civilian employers in 2005 about his non-judicial punishment. Although this conduct was not alleged, the Judge stated that he considered it on the issue of Applicant’s credibility, among other things. See, e.g., ISCR Case No. 05-03250 at n. 4 (App. Bd. Apr. 6, 2007). Viewed in light of the record as a whole, the Judge’s findings of deliberate falsification are sustainable. The record supports a conclusion 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

FOOTNOTES

1 In addition to the false answers described above, the SOR alleged the non-judicial punishment action (¶ 1(a)) and another false statement regarding Applicant’s purported addiction to pornography and his having sought psychiatric treatment for the same (¶ 1(c)). The Judge found in Applicant’s favor for those allegations.