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ISCR Case 12-00740.a1 — CASE

ISCR Case 12-00740.a1denied

Case Headnote

ISCR Case No. 12-00740.a1

Aug 18, 2014· Hon. Jeffrey D. Billett· appeal

Summary

A military veteran's security clearance was denied under Guideline E (Personal Conduct) due to a pattern of concerning behavior, including false statements and omissions. The applicant failed to disclose disciplinary actions from previous employers during his security clearance interview, which raised significant questions about his honesty and reliability.

The judge determined that these were not isolated incidents but rather a consistent pattern of conduct. This led to serious, unresolved questions regarding the applicant's overall fitness for a security clearance.

The appeal board affirmed the denial, specifically emphasizing the applicant's lack of credibility. The decision highlighted the persistent concerns about his personal conduct and the unresolved issues impacting his suitability for clearance.

Conditions Referenced

Disqualifying

E2.A5.1raisedDeliberate Omission, Concealment, or Falsification of Relevant Facts From Any Personnel Security Questionnaire or During Any Personnel Security Interview.
E2.A5.2raisedA History of Dishonesty or Lack of Candor in Dealings with the Government.

Key Rule Quoted

“DOHA decisions must either grant or deny a clearance . . . we have no authority to compromise and grant a lower level clearance as an intermediate solution.”
— ISCR Case No. 99-0260 at 4 (App. Bd. Apr. 12, 2000)

Procedural Posture

SOR issuedAug 26, 2013
Answer filed—
Hearing heldJun 5, 2014
Decision dateAug 18, 2014

Cite For

Issues of Personal Conduct Under Guideline E
The Importance of Honesty and Candor in Security Clearance Applications
The Authority Limitations of the Appeal Board Regarding Clearance Levels

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 Guideline E (Personal Conduct). The applicant argued that the Judge did not consider all evidence in the record. The Board affirmed the denial, finding the Judge's decision was supported by substantial evidence and that the applicant's arguments did not demonstrate harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPhilip S. Howe — denied the clearance

Decided onthe written record

Guidelines belowGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge did not consider all evidence in the record.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the applicant's arguments did not demonstrate harmful error. The Board affirmed the denial of the security clearance based on the applicant's conduct and lack of credibility.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Michael 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 E DIGEST: The Board has no authority to grant a lower level clearance as an intermediate solution, if Applicant is ineligible for the sought after level of clearance. Adverse decision affirmed. CASENO: 12-00740.a1 DATE: 08/18/2014 DATE: August 18, 2014 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-00740

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On August 26, 2013, DoD 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 decision on the written record. On June 5, 2014, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Philip S. Howe 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 considered all of the evidence in the record. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant entered the U.S. military in 2005. He tested positive on a pre-induction urinalysis. He was permitted to enlist because other recruits tested positive as well. He had denied any prior use of controlled substances on his enlistment papers. He later received non-judicial punishment under Article 15, UCMJ, for communicating a threat to kill a Drill Sergeant. Applicant denied the offense. During his clearance interview he was vague about the circumstances underlying the Article 15, attributing his remarks to sarcasm. Applicant was disciplined and/or terminated from employment from several civilian employers. Two of his job terminations, from the same employer, resulted from his having followed a shoplifter into the parking lot without calling for support, as company policy required him to do.1 Another employer administered verbal and written warnings to Applicant for speed alerts, attendance issues, “displaying an attitude,” not following instructions, and not clocking out on time. Decision at 2. During his interview, he initially denied having issues with this employer. When confronted with the adverse information, he claimed that he had been told by someone at the company that the incidents would not be placed in his file. He had disciplinary problems with another employer that provided security services. While performing his rounds, he failed to report burglars in a store, believing them simply to be rearranging inventory. He was also counseled for poor attendance. During his interview he failed to disclose all of his disciplinary problems. He also stated to the investigator and to the clearance adjudicator that he was making statements that he thought they wanted to hear. He also told the investigator that he would tell his employers whatever he thought they might want to hear, whether he meant the statements or not. In completing his SCA, he failed to disclose disciplinary action by two of his employers. The Judge’s Analysis The Judge concluded that Applicant’s conduct was neither minor nor infrequent. Moreover, he stated that Applicant had made no efforts to correct his omissions and false statements. The Judge characterized Applicant’s behavior as a pattern, finding that he had taken no steps to reduce his vulnerability to coercion. The Judge concluded that Applicant’s conduct raised serious, unresolved questions as to his fitness for a clearance.

DISCUSSION

Applicant cites to his having held a clearance for several years in the Reserves without a security incident. While this is evidence that the Judge was required to consider, along with all of the other evidence in the record, Applicant’s argument is not sufficient to rebut the presumption that the Judge considered all of the evidence. See, e.g., ISCR Case No. 11-06649 at 3 (App. Bd. Feb. 21, 2014). Applicant states his belief that the requirements for a secret clearance are different from those of a top secret and requests us to approve a secret clearance for him if he fails “to reach the standard of a TS[.]” Appeal Brief at 1. We have no authority to grant this relief. “DOHA decisions must either grant or deny a clearance . . . we have no authority to compromise and grant a lower level clearance as an intermediate solution.” ISCR Case No. 99-0260 at 4 (App. Bd. Apr. 12, 2000).

The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The 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). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

ORDER

The Decision is AFFIRMED. Signed; Michael Ra’anan Michael 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

FOOTNOTES

1 Applicant’s security clearance application (SCA), Item 4, shows that he frequently worked as a security guard or in some other related job.