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ISCR Case 15-01689.a1 — CASE

Case record

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

Decision Date12/8/2016
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 15-01689.h1) →
Participants
Applicant Representation: Pro Se
Judge: Michael Y. Ra'anan, James E. Moody, James F. Duffy
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline FFinancial Considerations · Against Applicant
- Guideline JCriminal Conduct · Against Applicant

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ISCR Case 15-01689.a1denied

Case Headnote

ISCR Case No. 15-01689.a1

Dec 8, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A military veteran was denied a security clearance under Guidelines E (Personal Conduct), F (Financial Considerations), and J (Criminal Conduct). The denial stemmed from the applicant's failure to disclose over $42,000 in significant debts on his security clearance application, demonstrating a pattern of dishonesty.

Further concerns arose from the applicant's criminal history, which included a felony offense and multiple other charges, reinforcing the pattern of dishonest conduct. The applicant also failed to take adequate steps to resolve his financial issues or seek financial counseling, leaving the debts unmitigated.

The judges emphasized the paramount importance of national security, concluding that the applicant had not mitigated the concerns related to his financial and criminal history. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

Guideline EappliedPersonal Conduct
Guideline FappliedFinancial Considerations
Guideline JappliedCriminal Conduct

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 issuedSep 25, 2015
Answer filed—
Hearing heldSep 14, 2016
Decision dateDec 8, 2016

Cite For

Failure to Disclose Significant Debts Under Guideline F
Pattern of Dishonesty Under Guideline E
Criminal Conduct History Under Guideline J

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 who was denied a security clearance due to financial and criminal conduct issues. The applicant challenged the Judge's findings and the adverse decision, arguing that it was arbitrary and capricious. The Board affirmed the decision, finding no harmful error in the Judge's determinations.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCarol G. Ricciardello — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline JGuideline 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.
Erroneous finding of fact — raised by the applicantRejected
Applicant challenged the Judge's finding that he had deliberately falsified his security clearance application.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the decision was not arbitrary, capricious, or contrary to law. The Judge's credibility determinations were given deference, and the adverse decision was affirmed based on the applicant's failure to mitigate security concerns.

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 Y. Ra’anan — Chair
James E. Moody
James F. Duffy

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 J; Guideline E DIGEST: A Judge should evaluate an applicant’s mens rea in light of the record as a whole. We give deference to a Judge’s credibility determinations. A Judge is presumed to have considered all of the evidence in the record. We are not permitted to consider the impact of an unfavorable decision. Adverse decision affirmed. CASE NO: 15-01689.a1 DATE: 12/08/2016 DATE: December 8, 2016 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-01689

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 September 25, 2015, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations), Guideline J (Criminal Conduct), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 14, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Carol G. Ricciardello denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge’s findings contained errors and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant is working on a bachelor’s degree. Married and divorced twice, he has joint custody of his two minor children, who live with him. In addition, he pays child support for another minor child from a previous relationship. Applicant’s military service from 1987 until 2009 included three combat tours. Applicant has experienced financial difficulties that he attributed to a reduction in pay following his retirement from the military and to frequent moves while seeking employment. The Judge entered adverse findings regarding three debts, in the amounts of over $22,500 (repossessed vehicle), over $16,000 (repossessed vehicle), and over $3,400 (charged-off personal loan). The Judge found that Applicant did not corroborate his claims to have disputed the first two debts and that none of the three had been resolved. Applicant’s security clearance application (SCA) inquired about the following: (1) property voluntarily or involuntarily repossessed; (2) defaults on any types of loans; (3) debts turned over to a collection agency; (4) accounts or credit cards suspended, charged-off, or cancelled for failure to pay; (5) debts more than 120 days delinquent; and (6) debts currently more than 120 days delinquent. Applicant answered “no” to these questions. These answers were false in light of the debts referenced above.1 She found that he did not intentionally falsify his responses about collection accounts. However, she found that his other false answers were deliberate. In 1999, while in the miliary, Applicant was punished under Article 15, UCMJ, for submitting a fraudulent travel claim. That same year he was also charged with driving under a suspended license, criminal trespass, and aggravated assault and aggravated stalking. The felony offenses were nolle prossed. In 2007, Applicant was charged with burglary, assault, domestic violence, and wanton endangerment, resulting from an altercation with his estranged wife. He pled guilty to the last charge and received two years of probation, which he has completed. The Judge’s Analysis The Judge stated that Applicant had known about the three debts described above since 2009 but had not resolved them. She stated that he was relying on the fact that two of them no longer appear on his credit reports. She noted circumstances beyond Applicant’s control that affected his debt problems but concluded that he had not acted responsibly under the circumstances. She also noted that Applicant had not received financial counseling or shown that his problems are being resolved. She concluded that he had not mitigated the concerns arising from his delinquent debts. The Judge entered favorable findings regarding allegations that Applicant had deliberately failed to disclose his felony offense and that he had failed to disclose that the three debts had been turned over to collection. She stated that there is no evidence that Applicant was aware that one of his debts was a collection account. However, she entered adverse findings regarding the criminal offenses, which were cross-alleged under Guidelines J and E. In concluding that Applicant had failed to mitigate these offenses, she cited to her finding of deliberate falsifications on his SCA. Despite the age of his most recent criminal offense, the Judge stated that his omissions showed a pattern of dishonesty.

DISCUSSION

Applicant challenges the Judge’s finding that he had deliberately falsified his SCA. When evaluating the deliberate nature of an applicant’s omissions or false statements, a Judge should consider the applicant’s mens rea in light of the entirety of the record evidence. See, e.g., ISCR Case No. 14-04226 at 3 (App. Bd. Aug. 18, 2015). The challenged finding relied in large part upon the Judge’s conclusion that Applicant’s explanations for his omissions were not credible. We give deference to a Judge’s credibility determinations. Directive ¶ E3.1.32.1. During his clearance interview, Applicant stated that he did not think that he had to list one of the debts because he had already discussed it with his bank. He also stated that he did not think that he had to list another debt because the collateral, a vehicle, had been repossessed. Government Exhibit 2, Interview Summary, at 7-8. It was reasonable for the Judge to have found these explanations to be lacking in credibility. We note that the questions at issue were clearly worded in the SCA, making it less likely that a person pursuing a college degree would misinterpret them. The challenged finding is sustainable. Applicant cites to record evidence that he believes supports his effort for a favorable determination. This evidence includes his having held a clearance for many years without incident or concern, the length of time since his last criminal incident, his attendance at anger management classes, etc. Applicant’s argument is not enough to rebut the presumption that the Judge considered all of the evidence, nor is it sufficient to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-05795 at 2-3 (App. Bd. Apr. 26, 2016). Applicant states that his job requires that he possess a security clearance. The Directive does not permit us to consider the impact of an unfavorable decision. See, e.g., ISCR Case No. 14-02619 at 3 (App. Bd. Apr. 7, 2016). The Judge examined the relevant evidence 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 Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board

FOOTNOTES

1 The SOR alleged only that Applicant had failed to disclose that the three debts identified above had been turned over to collection. It did not allege the other omissions regarding these debts.