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ISCR 14-00606.a1: Guideline D security clearance appeal, denied (2015) · CASE

ISCR Case 14-00606.a1denied

Case headnote

ISCR Case No. 14-00606.a1

Jan 28, 2015· Hon. Michael Y. Ra'anan· appeal

Summary

A defense contractor employee was denied a security clearance due to deliberate falsifications on his application concerning past criminal conduct and alcohol-related offenses. The decision invoked Guideline D (Sexual Behavior), Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct), with specific disqualifying conditions raised under AG ¶ E2.A5.2 and AG ¶ E2.A5.1.

The primary reason for denial was the applicant's intentional misrepresentation of his arrest history and criminal conduct. The judge found the applicant's explanation for these falsifications to be simplistic and unconvincing, leading to significant doubts about his trustworthiness.

Despite some favorable findings and the application of mitigating conditions AG ¶ E2.A5.3 and AG ¶ E2.A5.4, the judge emphasized the paramount importance of truthfulness in security clearance determinations. The deliberate nature of the falsifications raised substantial questions about the applicant's eligibility, resulting in the denial of his security clearance.

Conditions referenced

Disqualifying

AG ¶ E2.A5.2raisedPersonal Conduct
AG ¶ E2.A5.1raisedCriminal Conduct

Mitigating

AG ¶ E2.A5.3rejectedPersonal ConductThe judge found that none of the mitigating conditions applied due to the deliberate nature of the falsifications.
AG ¶ E2.A5.4rejectedCriminal ConductThe judge concluded that the applicant's favorable evidence did not mitigate the concerns raised by his deliberate falsifications.

Key rule quoted

“The following will normally result in an unfavorable clearance action . . .: refusal to provide full, frank and truthful answers to lawful questions . . . in connection with a personnel security or trustworthiness determination.”
Directive, Enclosure 2 ¶ 15.

Procedural posture

SOR issuedMar 11, 2014
Answer filed—
Hearing heldSep 30, 2014
Decision dateJan 28, 2015

Cite for

Importance of Truthfulness in Security Clearance Applications
Impact of Deliberate Falsifications on Clearance Eligibility
Rejection of Mitigating Conditions Due to Serious Personal Conduct Issues

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 multiple guidelines, including sexual behavior and personal conduct. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding it supported by substantial evidence and not contrary to law.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRobert Robinson Gales denied the clearance

Decided ona hearing

Guidelines belowGuideline DGuideline JGuideline GGuideline 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, particularly regarding the applicant's deliberate falsifications on his security clearance application. The Judge's findings were not arbitrary or capricious, and the applicant did not rebut the presumption that all evidence was considered.

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 Ra’anan (Chair)
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 D; Guideline J; Guideline G; Guideline E DIGEST: Applicant has not rebutted the presumption that the Judge considered all of the evidence. Refusal to provide truthful answers to lawful questions by investigators will normally result in denial of a clearance. Adverse decision affirmed. CASE NO: 14-00606.a1 DATE: 01/28/2015 DATE: January 28, 2015 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-00606

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 March 11, 2014, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline D (Sexual Behavior), Guideline J (Criminal Conduct), Guideline G (Alcohol Consumption), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Department Counsel requested a hearing. On September 30, 2014, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Robert Robinson Gales 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’s adverse decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guidelines D, J, and G are not at issue in this appeal. Consistent with the following, we affirm. The Judge’s Findings of Fact The Judge made the following findings pertinent to the issues raised on appeal: Applicant is an employee of a Defense contractor. He has been employed by the same contractor since mid- 2013. He has previously worked for Defense contractors and has performed his duties overseas in support of U.S. military operations. He served in the U.S. military from 2003 to 2007 during which time he received non-judicial punishment for an offense involving alcohol. He was discharged from the military for misconduct, receiving a General Discharge under Honorable Conditions. Applicant’s security clearance application (SCA) asked, among other things, whether in the previous seven years Applicant had been arrested by any type of law enforcement official; had been charged, convicted, or sentenced regarding a crime in any court; had ever been convicted of an offense involving domestic violence; or had ever been charged with an offense involving alcohol or drugs. Applicant answered “no” to these questions. Applicant’s answers were false, however, in light of evidence of his interactions with law enforcement and the judicial system. He was arrested and charged with the following offenses: simple assault/drunk and disorderly, while in the military (2006); assault, while in the military (2007); unlawful carrying of a weapon (2007); battery, an offense involving domestic violence (2013); and public intoxication (2013). These offenses were substantiated by Applicant’s admissions to the SOR and by the evidence adduced at the hearing. Applicant enjoys a good reputation for dependability and honesty. His colleagues state that he has a high level of commitment to the job, is willing to accept additional responsibility, and possesses the interpersonal skills necessary to handle conflict. The Judge’s Analysis The Judge noted that, in his SCA, Applicant had certified his answers as correct, including those at issue in this case. Additionally, Applicant admitted in his answer to the SOR the deliberate nature of his false statements. However, he testified at the hearing that he completed his SCA while overseas and did not have all of the necessary information. The Judge found this explanation to be “simplistic.” Decision at 15. He concluded that Applicant had indeed deliberately falsified his SCA and that none of the Guideline E mitigating conditions applied. In the whole-person analysis, the Judge noted Applicant’s favorable evidence, such as having moderated his alcohol consumption, his good employment record, and his genuine remorse. However, the Judge reiterated his analysis concerning Applicant’s deliberate falsifications. He also noted another falsification that was not alleged. The Judge stated that he mentioned this matter “as another example of a course of conduct in which Applicant had omitted or concealed the truth.” Id. at 16. The Judge stated that, after considering Applicant’s conduct, he had “substantial questions and doubts as to Applicant’s eligibility and suitability for a security clearance” Id.

DISCUSSION

Applicant cites to his good security record while performing duty in hostile situations. This was evidence that the Judge was required to consider, along with all the other evidence in the record. The Judge made findings about Applicant’s performance of duty, explicitly acknowledging that he had worked in trying situations. However, the Judge’s overall adverse decision is supportable, in light of Applicant’s admissions of having deliberately falsified his SCA. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 11-13626 at 3 (App. Bd. Nov. 7, 2013). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. “The following will normally result in an unfavorable clearance action . . .: refusal to provide full, frank and truthful answers to lawful questions . . . in connection with a personnel security or trustworthiness determination.” Directive, Enclosure 2 ¶ 15. 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board