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ISCR Case 14-00952.a1 — CASE

ISCR Case 14-00952.a1denied

Case Headnote

ISCR Case No. 14-00952.a1

Mar 13, 2015· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from the applicant's failure to disclose a past bankruptcy and other financial delinquencies on her security clearance application. The judge determined this omission constituted deliberate concealment.

Specifically, the judge found the applicant's explanations for these omissions lacked credibility and were inconsistent. Furthermore, the applicant did not demonstrate a good-faith effort to promptly correct the undisclosed information. Disqualifying conditions AG ¶ 16 and AG ¶ 20 were raised, while mitigating conditions AG ¶ 20(a) and AG ¶ 20(b) were considered but ultimately not applied.

The appeal board affirmed the judge's decision, citing the applicant's credibility issues and the absence of sufficient evidence to support mitigating circumstances. Consequently, the security clearance was DENIED.

Conditions Referenced

Disqualifying

AG ¶ 16raisedPersonal ConductThe applicant's failure to disclose financial issues raised concerns about her reliability and trustworthiness.
AG ¶ 20raisedFinancial ConsiderationsThe applicant's financial delinquencies and bankruptcy were significant factors in the denial.

Mitigating

AG ¶ 20(a)rejectedThe Behavior Was Not RecentThe applicant's financial issues were ongoing and not sufficiently mitigated.
AG ¶ 20(b)rejectedThe Applicant Acted Responsibly Under the CircumstancesThe applicant's failure to disclose was deemed deliberate and not a result of unique circumstances.

Key Rule Quoted

“A Judge is presumed to have considered all the evidence in the record unless she specifically states otherwise.”
— ISCR Case No. 07-00196 at 3 (App. Bd. Feb. 20, 2009)

Procedural Posture

SOR issuedApr 24, 2014
Answer filed—
Hearing heldNov 5, 2014
Decision dateMar 13, 2015

Cite For

Deliberate Concealment of Financial Issues Under Guideline E
Credibility Determinations in Security Clearance Cases
The Presumption That Judges Consider All Evidence Unless Stated Otherwise

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 an applicant seeking a security clearance after being denied due to concerns under Guideline F (Financial Considerations) and Guideline E (Personal Conduct). The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error and that the Judge's conclusions were supported by substantial evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowCarol G. Ricciardello — 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 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 that the Judge properly weighed the evidence and made credibility determinations. The Board concluded that the Judge's unfavorable security clearance decision was sustainable and consistent with national security interests.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Ra’anan — Chair
Jeffrey D. Billett
Jean E. Smallin

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; Guideline E DIGEST: Applicant has not overcome the presumption that the Judge considered all the evidence. Adverse decision affirmed. CASENO: 14-00952.a1 DATE: 03/13/2015 DATE: March 13, 2015 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-00952

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Nicole A. Smith, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On April 24, 2014, DoD 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 5, 2014, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Carol G. Ricciardello denied Applicant’s request for a security clearance. Applicant appealed, pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable security clearance decision.1 The Judge made the following findings: Applicant completed a security clearance application (SCA) in 2002. When asked if she had filed a bankruptcy petition under any chapter of the bankruptcy code in the past seven years, she answered “no.” She also answered “no” to questions that asked if she had debt delinquencies over 180 days on any current debts. Applicant had filed a Chapter 13 bankruptcy petition in 1998. When asked why she did not disclose the bankruptcy and her previous delinquent debts, she stated that she was told by a recruiter that because she had completed the Chapter 13 payment plan, she did not have to disclose it. Applicant was 33 years old when she completed the SCA. She indicated that it was a scary environment for her when she completed the SCA. She did disclose a bad check offense, a public intoxication charge, and two speeding tickets on the SCA. In September 2013, Applicant completed her most recent SCA. One question asked if, in the past seven years, she had any bills or debts turned over to a collection agency, or had an account or credit card suspended, charged off, or canceled for failure to pay as agreed. It also asked if she had been over 120 days delinquent on any debt not previously entered. She answered “no” to these questions. These responses were incorrect. Applicant stated that on the day she completed the SCA she was very busy. She had a notebook with all of her past debts listed in it. It was the first time she completed the SCA electronically, and the Internet kept going down and losing her data, so she repeatedly had to start over. She stated that each time she started over, she disclosed all of her delinquent debts. She stated that her “no” answer was a mistake, and she didn’t know why she answered “no.” She admitted her financial situation was embarrassing and she did not want to share it with her co-workers, who were in close proximity to her in the crowded room where she filled out the SCA. During a subsequent interview with a government investigator, Applicant stated that she believed most of her accounts were current or were paid in full, and she had not listed the accounts on the SCA because she thought she only had to list currently delinquent or collection accounts. This explanation of how she answered the government investigator is inconsistent with the statements she gave at the hearing wherein she stated that she actually listed the accounts each time she attempted to complete the online application. The Judge reached the following conclusions: Applicant told the investigator she did not think she had to include her past delinquent debts (on her 2013 SCA) because most of them were now current. This explanation contradicts her testimony. At the hearing, she stated she thought she included her delinquent debts on the SCA, and somehow the electronic SCA kept dumping her information. She explained that each time she went back and included her past delinquent debts. Then she testified that somehow she overlooked her final submission where she mistakenly answered “no” to the financial delinquency questions. She then certified and swore her answers were true, but she failed to review the final version of the SCA where she stated she must have mistakenly answered “no” to the question. Applicant’s testimony was not credible. She deliberately concealed her past financial problems. She did not promptly make a good-faith effort to correct her omissions. There is insufficient evidence to conclude that there were unique circumstances surrounding her omissions. Her deliberate concealment and falsification cast doubt on her reliability, trustworthiness, and good judgment. Applicant argues that the Judge did not consider certain evidence when she determined that Applicant made inconsistent statements and was not a creditable witness. Applicant’s brief asserts that there were ambiguities in Applicant’s statements to the government investigator during her interview in 2013 after completion of the 2013 SCA. Applicant asserts that these ambiguities were not considered by the Judge. Also, Applicant states that the ambiguities in the interview statement were left unresolved as a result of the Judge’s failure to adequately explore the statements made during the interview through questioning at the hearing. Applicant’s arguments on this point fail to establish error on the part of the Judge. The Judge found that Applicant’s explanations as to why she did not disclose her numerous debts on her 2013 SCA lacked credibility. The gravamen of her conclusion on this point was the significant disparity between Applicant’s explanation of her SCA answer during the interview, and her explanation of same during her hearing testimony. Regardless of any ambiguities, Applicant’s statements to the investigator involved descriptions of her perceptions as to the status of her debts, and what she thought the SCA required her to list. By contrast, her hearing testimony focused on environmental factors that she claimed affected her ability to complete the SCA accurately, such as problems with the on-line e-QIP process (which kept dumping her entries in the financial records section of the SCA, according to her testimony), the fact that the office was very busy at the time, and the fact that she was required to complete the SCA electronically in a crowded room full of people. Applicant’s hearing testimony also included her statement that she really didn’t know why she answered “no” on the SCA, or couldn’t explain why the SCA reflected a “no” answer. A Judge is presumed to have considered all the evidence in the record unless she specifically states otherwise. See, e.g., ISCR Case No. 07-00196 at 3 (App. Bd. Feb. 20, 2009). Applicant has not demonstrated any aspect of the case record or the Judge’s actions that overcome this presumption. Additionally, the Board gives deference to the credibility determinations of the Judge. Directive, ¶ E3.1.32.1. After a review of the record and the Judge’s decision, including the evidence discussed in the preceding paragraph, the Board concludes that her negative assessment of Applicant’s credibility is reasonably supported by the evidence, and that there is nothing in the record that significantly detracts from that credibility determination.

The Board finds no reason to believe that the Judge did not properly weigh the evidence or that she failed to consider all the evidence of record. See, e.g., ISCR Case No. 11-06622 at 4 (App. Bd. Jul. 2, 2012). We have considered the totality of Applicant’s arguments on appeal and find no error in the Judge’s ultimate conclusions regarding mitigation. 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). Furthermore, the burden of persuasion is held by Applicant. (See Directive ¶ E.3.1.15). To the extent an applicant has presented ambiguous or contradictory testimony, it is not consistent with the ultimate burden for the Judge to construe inconsistencies in an applicant’s favor. 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, 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 ultimate unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge 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: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board

FOOTNOTES

1 The Judge entered formal findings favorable to Applicant under Guideline F. Those favorable findings are not at issue on appeal.