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ISCR Case 10-05860.a1 — CASE

Case record

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

Decision Date12/5/2012
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 10-05860.h1) →
Participants
Applicant Representation: Pro Se
Judge: Michael Y. Ra'anan, Jean E. Smallin, William S. Fields
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline HDrug Involvement & Substance Misuse · For Applicant
- Guideline JCriminal Conduct · For Applicant

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ISCR Case 10-05860.a1denied

Case Headnote

ISCR Case No. 10-05860.a1

Dec 5, 2012· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance primarily due to deliberate falsifications on his application, specifically under Guideline E (Personal Conduct). The judge determined that the applicant's explanations for these omissions were unconvincing and failed to mitigate the government's security concerns.

While Guideline H (Drug Involvement) and Guideline J (Criminal Conduct) were raised as potential disqualifying conditions, the denial was ultimately based on the applicant's intentional misrepresentations. The appeal board affirmed the judge's decision, concluding that the findings were sustainable and not arbitrary or contrary to law.

Therefore, the security clearance was denied because the applicant deliberately falsified information on his security clearance applications, and his explanations for these omissions were deemed insufficient to resolve the security concerns.

Conditions Referenced

Disqualifying

EraisedPersonal Conduct

Mitigating

HappliedDrug Involvement
JappliedCriminal Conduct

Key Rule Quoted

“Once the government presents evidence raising security concerns, the burden shifts to the applicant to mitigate those concerns.”

Procedural Posture

SOR issuedApr 4, 2012
Answer filed—
Hearing heldSep 17, 2012
Decision dateDec 5, 2012

Cite For

Deliberate Falsification of Information on Security Clearance Applications Under Guideline E
Burden of Proof Shifts to Applicant to Mitigate Security Concerns
Judge's Discretion in Weighing Mitigating Evidence Against Disqualifying Circumstances

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 concerns under Guidelines J, H, and E. The applicant argued that the Judge's decision was arbitrary and capricious, claiming he omitted information due to embarrassment and misunderstanding. The Board affirmed the Judge's decision, finding no harmful error in the ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowHenry Lazzaro — denied the clearance

Decided ona hearing

Guidelines belowGuideline JGuideline HGuideline 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 the decision, including a rational connection between the facts found and the choice 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
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 J; Guideline H; Guideline E DIGEST: Applicant’s argument that he omitted embarrassing information from his security clearance applications out of concern for his job does not demonstrate error. Specifically the Judge considered Applicant’s explanation in concluding that the Applicant deliberately falsified his applications. Adverse decision affirmed. CASENO: 10-05860.a1 DATE: 12/05/2012 DATE: December 5, 2012 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-05860

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 April 4, 2012, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline J (Criminal Conduct), Guideline H (Drug Involvement) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicants requested a hearing. On September 17, 2012, after the hearing, Administrative Judge Henry Lazzaro 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 erred in concluding that Applicant deliberately and intentionally provided false information on security clearance applications he submitted in June 2004 and January 2010. In support of that argument Applicant states that he omitted the information because he was concerned about losing his job and was very embarrassed about that happening. He also states that he did not understand how to fill out the applications and how important it was not to omit anything. Applicant’s arguments do not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. In reaching his decision as to Applicant’s falsifications, the Judge specifically considered Applicant’s explanations. Decision at 3, 4 and 7. However, he was not bound, as a matter of law, to accept or reject those explanations. Rather, the Judge considered those explanations in light of the record evidence as a whole, and concluded there was a sufficient basis to find that Applicant’s omissions were deliberate and intentional. On this record, the Judge’s finding that Applicant’s falsifications were deliberate is sustainable. See Directive ¶ E3.1.32.1. Once the government presents evidence raising security concerns, the burden shifts to the applicant to mitigate those concerns. 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, or vice versa. 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. 10-00278 at 2 (App. Bd. Mar. 18, 2011). A review of the Judge’s decision indicates that he weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying circumstances and considered the possible application of relevant conditions and factors. He found in favor of Applicant under Guidelines J and H, but reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns under Guideline E. 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 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, 158 (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 unfavorable security clearance decision is sustainable.

ORDER

The Judge’s decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, 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