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ISCR Case 15-01789.a1 — CASE

ISCR Case 15-01789.a1denied

Case Headnote

ISCR Case No. 15-01789.a1

Jan 24, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

The applicant was denied a security clearance primarily under Guideline E (Personal Conduct) due to submitting false grade reports to obtain tuition reimbursement. This misconduct was uncovered during an employer audit. The applicant failed to disclose her actions until directly confronted by her employer, which significantly undermined her credibility in the judge's assessment.

While allegations under Guideline F (Financial Considerations) were raised, the applicant was cleared of these concerns. The judge specifically determined that any evidence of the applicant's financial difficulties did not mitigate the fraudulent nature of her conduct in submitting the false grade reports.

The appeal board affirmed the adverse decision, concluding there was substantial evidence to support the judge's findings regarding the applicant's personal conduct. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

E2.A5.1.raisedMisconduct

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 29, 2015
Answer filed—
Hearing heldOct 13, 2016
Decision dateJan 24, 2017

Cite For

Affirmation of Adverse Decision Based on Substantial Evidence Under Guideline E
Importance of Timely Disclosure of Misconduct
Rejection of Mitigating Factors Related to Financial Troubles in Personal Conduct Cases

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 findings contained errors and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the record.

Appealed bythe applicant

Applicant representationAttorney

Judge belowPaul J. Mason — denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline E

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant cited no harmful error in the Judge's decision.

Why the Board ruled this way

The Board found that the Judge's findings were based on substantial evidence and that the applicant did not demonstrate any harmful error in the Judge's decision. The adverse decision was affirmed as sustainable on the record.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

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 E DIGEST: The Judge’s material findings, viewed as a whole, are based upon substantial evidence or constitute reasonable conclusions that could be drawn from the evidence. Applicant has cited to no harmful error in the Judge’s decision. Adverse decision affirmed. CASE NO: 15-01789.a1 DATE: 01/24/2017 DATE: January 24, 2017 In Re: ------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-01789

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Andrew G. Dualan, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On September 29, 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 decision on the written record. On October 13, 2016, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Paul J. Mason 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 of fact contained errors, whether the Judge failed to consider all of the evidence in the record, and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guideline F 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 resigned from a job at the end of 2011 because she had provided her employer with false grade reports in order to obtain tuition reimbursement. She was 32 years old at the time. The misconduct came to light when the employer requested a transcript to validate Applicant’s grades. After conducting an internal audit, the employer sought confirmation of Applicant’s grades from the university. The university replied that the grades claimed on the transcript that Applicant had submitted could not be verified. On December 14, 2011, Applicant stated that she would take responsibility for the amount owed. The next day “she submitted an online grade report that disclosed additional discrepancies between the grades reported and the online grade report she submitted.” Decision at 4. Applicant did not provide documentation to support her claim to have paid the $7,140 that she owed. However, this debt does not appear on her credit reports. The Judge’s Analysis The Judge cleared Applicant of the Guideline F allegations. However, he entered adverse findings under the sole Guideline E allegation, the false grade report. The Judge stated that Applicant had not disclosed her misconduct until she had been confronted by her employer. Though noting the elapse of several years since this incident, the Judge stated that Applicant had submitted misleading information twice–once on December 9 and another a few days later. He stated that evidence of Applicant’s financial troubles did not extenuate her fraudulent conduct.

DISCUSSION

Applicant’s brief includes references to matters from outside the record, which we cannot consider. Directive ¶ E3.1.29. Applicant challenges the Judge’s finding that she had submitted false information twice. She argues that the evidence upon which this finding is based misinterpreted her conduct. Even if the challenged finding is erroneous, it did not likely affect the outcome of the case. In explaining his adverse decision, the Judge cited to evidence that Applicant did not disclose her misconduct until after she learned of an audit that would likely have uncovered it anyway. Therefore, even if he had found only one submission of false information, the Judge would likely have reached the same ultimate conclusions. The Judge’s material findings, viewed as a whole, are based upon substantial evidence or constitute reasonable conclusions that could be drawn from the evidence. Applicant has cited to no harmful error in the Judge’s decision. See, e.g., ISCR Case No. 15-01285 at 3 (App. Bd. Dec. 22, 2016). Applicant cites to evidence that she has never been denied a clearance and that her security record is clean. She also cites to her response to the FORM, which includes email correspondence with her previous employer. She argues that, but for this correspondence, her misconduct might not have come to the attention of her current security officials until much later.1 Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 15-02854 at 2 (App. Bd. Nov. 22, 2016). Neither has she demonstrated that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-06686 at 2 (App. Bd. Apr. 27, 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.”

FOOTNOTES

1 Applicant also contends that the Judge did not consider evidence that she held a clearance, including Top Secret, for years following her resignation in 2011. She argues that she was able to maintain her clearance even though many security officials knew of her misconduct. The record is not clear on this point. Applicant advised in her clearance interview that, after her resignation, she no longer had a clearance due to loss of jurisdiction. Clearance Interview Summary, dated September 2012, at 3, included in Item 4, Answers to Interrogatories. It appears that the security clearance application (SCA) that is the basis for the current adjudication was signed in 2009, the clearance interview occurring in late 2012. Decision at 1-2; Item 3, SCA, dated March 24, 2009; Clearance Interview Summary at 1. Accordingly, Applicant’s security-significant conduct may well have occurred during the pendency of her clearance investigation. There is no evidence in the record that unequivocally demonstrates that officials with knowledge of Applicant’s misconduct granted her a clearance after 2009 but prior to the date of the SOR, although Applicant’s FORM response includes an email from an official (who does not appear to be a security official) stating that her “clearance is fine for the Secret level.” Even if Applicant’s assertions are correct, however, the Government is not estopped from making an adverse clearance decision despite prior favorable adjudications. See, e.g., ISCR Case No. 14-02995 at 2-3 (App. Bd. Apr. 7, 2016). 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