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ISCR 14-06406.a1: Guideline E security clearance appeal, denied (2015) · CASE

ISCR Case 14-06406.a1denied

Case headnote

ISCR Case No. 14-06406.a1

Dec 4, 2015· Hon. Jeffrey D. Billett· appeal

Summary

A former military member was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from a history of financial problems and the intentional falsification of his security clearance application.

The applicant's financial difficulties dated back to the mid-1980s, indicating a longstanding pattern. Additionally, he deliberately misrepresented the reason for his military discharge on his application. The explanations provided by the applicant for both his financial issues and the falsification were found to be implausible and lacked credibility.

These factors, specifically the intentional falsification (AG ¶ 20) and the history of financial problems (AG ¶ 19), led to the conclusion that granting a security clearance was not consistent with national security interests.

Conditions referenced

Disqualifying

AG ¶ 20raisedPersonal Conduct
AG ¶ 19raisedFinancial Considerations

Key rule quoted

“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)

Procedural posture

SOR issuedFeb 3, 2015
Answer filed—
Hearing heldSep 15, 2015
Decision dateDec 4, 2015

Cite for

Denial Based on Financial Issues Under Guideline F
Intentional Falsification of Application Under Guideline E
Credibility Assessments in Security Clearance Decisions

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 it supported by substantial evidence and consistent with the law.

Appealed bythe applicant

Applicant representationPersonal representative

Judge belowFrancisco Mendez 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 findings were not arbitrary or capricious. The Judge's credibility assessments were reasonable and the decision was 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
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 F; Guideline E DIGEST: The cited portion of the interview summary from Applicant investigation merely represents a recitation of Applicant’s responses during the interview, not the interviewers opinions. Adverse decision affirmed. CASENO: 14-06406.a1 DATE: 12/04/2015 DATE: December 4, 2015 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-06406

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT (Deleted), Personal Representative The Department of Defense (DoD) declined to grant Applicant a security clearance. On February 3, 2015, 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 September 15, 2015, after the hearing, Defense Office of Hearings and Appeals (DOHA)Administrative Judge Francisco Mendez denied Applicant’s request for a security clearance. Applicant timely 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 decision. The Judge made the following findings of fact: Applicant served in the U.S. military from the 1980sto the early 1990s. He was charged by the military in 1992 with committing fraud because he applied for and was receiving housing and other allowances that he was not entitled to receive. Specifically, Applicant applied for and received allowances for military members with a dependant(s). Although he was married to his first wife, they had been separated for years and he was not providing her financial support. Long after Applicant and his first wife permanently separated, he submitted at least two forms to the military claiming that he and his former wife were living together in order to receive the higher-rate allowances. When interviewed by military investigators, Applicant was specifically advised that he was suspected of committing fraud against the U.S. Government, in violation of Article 132, Uniform Code of Military Justice (UCMJ). After waiving his right to counsel and to remain silent, Applicant told the investigators that he was unable to afford to get a divorce from his former wife because of financial problems. He went on to state, “Unfortunately, I did not realize until now the seriousness of my actions, therefore I am willing to take full responsibility for my actions.” Applicant went to a preliminary hearing on the UCMJ charges, where he was represented by a military defense counsel. Subsequently, he submitted a request for discharge in lieu of trial by court-martial. His request was granted and he received an under other than honorable conditions discharge (UOTHC). His federal income tax returns were intercepted to recoup the $8,500 in allowances he illegally received. Applicant submitted a security clearance application (SCA) in 2014. He stated therein that he has received a UOTHC discharge for dating his current wife while she was still married to her first husband and charges were brought against him by that former husband. Applicant was subsequently interviewed by a security clearance background investigator. Applicant told the investigator that he was investigated and discharged from the military for adultery. At his hearing, he admitted that he was investigated and discharged from the military for committing fraud, not for adultery. He also testified that the reason he listed adultery as the reason for his discharge on his SCA was because he did not remember the correct information. Applicant purchased furniture on credit and was not required to pay for it for the initial 18 months. After the 18-month grace period ended, he did not make any of the required payments. In 2008 the creditor secured a judgment against him in the amount of $7,500. He purportedly entered into a repayment plan with the creditor, but stopped paying after about six months. He did not submit evidence of the plan or the payments. Applicant has not contacted the creditor to resolve the debt. He stated that his financial problems were due to layoffs, unsteady employment and underemployment. He submitted no evidence of financial or debt counseling, or a written budget. The Judge reached the following conclusions: Regarding Guideline F, the outstanding debt is not an isolated incident. Instead, it is symptomatic of a longstanding history of financial problems dating back to the mid-1980s. Applicant has yet to take any discernible action, to include financial counseling, to change the trajectory of his financial situation. It appears likely that his poor financial situation, as well as the attendant security concerns, will continue into the foreseeable future. Regarding Guideline E, Applicant intentionally falsified his SCA when he failed to disclose the true reason for his UOTHC discharge. Applicant’s explanation for not listing fraud on his SCA as the reason for his UOTHC is implausible and not credible. Moreover, Applicant’s attempt to mislead the Government regarding the basis for this UOTHC discharge did not end with the submission of his SCA. Instead, he repeated the lie that he was discharged for adultery to the background investigator. None of the mitigating conditions apply. Applicant’s falsification of his SCA is recent and was part of an ever escalating plan to mislead the Government regarding his past. It is not clearly consistent with the national interest to grant Applicant access to classified information. Applicant argues that the Judge did not take all provided information into account when he made his final decision. In a fashion similar to his assertion at the hearing, he argues evidence and facts that he believes establish that he did not defraud the Government while in the Air Force and he did not subsequently attempt to deceive the Government about his past during his security clearance application process. Lastly, Applicant stresses, by way of mitigation, that his actions while in the Air Force occurred over twenty-four years ago. Applicant has not established error on the part of the Judge. Applicant’s brief includes matters not contained in the record, which we cannot consider. Directive ¶ E3.1.29. Applicant’s citation to several items of evidence that he argues support his position is not sufficient to rebut the presumption that the Judge considered all the evidence in the record. See, e.g., ISCR Case No. 12-08412 at 2 (App. Bd. Sep.11, 2015). To the extent that he is challenging the Judge’s findings of fact, we conclude that the findings are based on substantial evidence or constitute reasonable inferences from the evidence. Neither do his arguments demonstrate that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 08-06438 at 2 (App. Bd. Aug. 4, 2009). Moreover, Applicant has cited to no error likely to change the outcome of the case. See, e.g., ISCR Case No. 12-03420 at 3 (App. Bd. Jul. 25, 2014). Applicant cites to a portion of the interview summary for the proposition that he is financially stable and not subject to blackmail. These comments represent Applicant’s responses to questions asked of him during the interview. They are not the interviewer’s opinion of the state of Applicant’s finances or Applicant’s eligibility for a clearance. See, e.g., ISCR Case No. 14-03069 at 3 (App. Bd. Jul. 30, 2015).

The Judge’s resolution of conflicting evidence relating to the Guideline E falsification allegation rests, in substantial part, on his negative assessment of Applicant’s credibility. After a review of the entire record, the Board concludes that the Judge’s credibility assessment is reasonably supported by the evidence. The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007). 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 Judge’s 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