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ISCR 09-06986: Guideline F security clearance appeal, denied (2011) · CASE

ISCR Case 09-06986denied

Case headnote

ISCR Case No. 09-06986

Jan 31, 2011· Hon. Michael Y. Ra'anan· appeal

Summary

A retired Senior Chief Petty Officer, with 25 years of Navy service, was denied a security clearance under Guideline F (Financial Considerations). The denial stemmed primarily from the judge's finding of deliberate falsification of information within the applicant's Security Clearance Application.

Specifically, the judge determined that the applicant's explanations for omissions were not credible, and noted inconsistent financial disclosures throughout the entire security clearance process. These factors contributed to the denial, despite the applicant presenting mitigating factors related to his extensive military service.

Ultimately, the judge concluded that the deliberate falsification and failure to provide complete and consistent financial information were sufficient grounds to deny the security clearance.

Conditions referenced

Disqualifying

F1raisedDeliberate Falsification of Information

Mitigating

F2appliedHonorable Military ServiceThe judge considered the applicant's honorable service as part of the whole-person concept.

Key rule quoted

“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 issuedJul 19, 2010
Answer filed—
Hearing heldNov 15, 2010
Decision dateJan 31, 2011

Cite for

Deliberate Falsification of Information Under Guideline F
Consideration of Military Service in Security Clearance Decisions
The Standard for Granting Clearance 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 was from a denial of a security clearance based on allegations of financial considerations and personal conduct. The applicant argued that the judge's decision was arbitrary and failed to consider his military service. The Board affirmed the judge's decision, finding it sustainable based on the evidence presented.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran 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 argued that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for his findings, including a rational connection between the facts and the decision made.

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)
James E. Moody
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 DIGEST: The judge was not bound to accept Applicant’s explanation. Rather he considered it in light of the record as a whole.. The Judge’s finding of deliberate falsification is sustainable. Adverse decision affirmed. CASENO: 09-06986. DATE: 01/31/2011 DATE: January 31, 2011 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-06986

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 July 19, 2010, 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 November 15, 2010, after the hearing, Administrative Judge Edward W. Loughran denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse clearance decision is arbitrary, capricious or contrary to law. Applicant argues that the Judge’s adverse decision should be reversed because the Judge failed to accept his explanation as to why his omission of information from his Security Clearance Application (SCA) was not deliberate and intentional. Applicant also argues that the Judge failed to consider the fact that Applicant had served 25 years in the Navy, retiring at the rank of Senior Chief Petty Officer (E-8), under the whole-person concept.1 Applicant’s arguments do not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. In reaching his decision, the Judge specifically considered “Applicant’s honorable service to this country in the U.S. military” as part of his analysis under the whole-person concept. Decision at 12. However, 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. 06-10320 at 2 (App. Bd. Nov. 7, 2007). A party’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). With respect to the falsification of Applicant’s SCA, the Judge specifically considered Applicant’s explanation for why he failed to disclose the information in question. Decision at 7, 12. However, the Judge was not bound, as a matter of law, to accept or reject that explanation. Rather, the Judge considered that explanation in light of the record evidence as a whole, including Applicant’s experience with the security clearance process and the fact that he had given inconsistent information about his finances throughout that process, and concluded there was a sufficient basis to find that Applicant’s omissions were deliberate and intentional. On this record, the Judge’s finding of deliberate falsification is sustainable. See Directive ¶ E3.1.32.1. 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). Therefore, the Judge’s unfavorable security clearance decision 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 Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board

FOOTNOTES

1 The Judge’s favorable findings under Guideline F and as to SOR paragraphs 2.a-2.dand 2.fare not at issue on appeal.