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ISCR 15-06990.a1: Guideline E security clearance appeal (2018) · CASE

ISCR Case 15-06990.a1unknown

Case headnote

ISCR Case No. 15-06990.a1

Jan 11, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

This security clearance case, decided under Guideline E (Personal Conduct), involved an applicant who represented himself and faced allegations of intentionally omitting debts from his security clearance application. The initial decision found against the applicant, but this was subsequently reversed by the Appeal Board.

The Appeal Board determined that the government failed to prove the applicant deliberately falsified his application. The Board noted that the applicant had, in fact, disclosed some debts, and the omissions were not found to be intentional.

Consequently, the Appeal Board concluded that the judge's initial adverse decision was arbitrary and contrary to law. As a result, no adverse security clearance outcome was sustained against the applicant.

Key rule quoted

“Proof of an omission, standing alone, does not establish or prove an applicant’s state of mind when the omission occurred.”
ISCR Case No. 03-09483 at 3 (App. Bd. Nov. 17, 2004)

Procedural posture

SOR issuedApr 27, 2016
Answer filed—
Hearing heldOct 16, 2017Decision issued by Administrative Judge Richard A. Cefola
Decision dateJan 11, 2018Appeal Board decision reversed the initial ruling.

Cite for

Reversal of Adverse Decision Based on Lack of Evidence for Deliberate Falsification Under Guideline E
Importance of Intent in Omissions on Security Clearance Applications
Government's Burden of Proof in Establishing Falsification Claims

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

Reversed

The appeal involved a denial of a security clearance based on alleged falsification of debts in the Applicant's security clearance application. The Board found that the Government did not provide substantial evidence to support the claim of deliberate omission. Consequently, the Board reversed the Administrative Judge's decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRichard A. Cefola denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantError sustained
The Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Government failed to establish by substantial evidence that Applicant deliberately failed to disclose debts in his security clearance application. The Judge's findings were arbitrary and capricious, lacking a rational connection to the evidence presented.

No rational connection between facts and conclusion

Standard of review applied

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

Appeal Board panel

Michael Ra’anan (Chair)
William S. Fields
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 E DIGEST: The Government failed to establish by substantial evidence that Applicant deliberately failed to disclose debts in his security clearance application. Adverse decision reversed. CASE NO: 15-06990.a1 DATE: 01/11/2018 DATE: January 11, 2018 In Re: ------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-06990

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 April 27, 2016, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision – security concerns raised under Guideline E (Personal Conduct) of DoD Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On October 16, 2017, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Richard A. Cefola 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 decision was arbitrary, capricious, or contrary to law. Consistent with the following, we reverse the Judge’s unfavorable decision. The SOR alleged that Applicant falsified material facts in his 2012 security clearance application (SCA) by deliberately failing to disclose a state tax lien and seven other delinquent debts. The Judge found in favor of Applicant on the state tax lien allegation and against him on the allegation concerning the other debts. In his appeal brief, Applicant provided character reference letters that he did not previously submit to the Judge. Those letters constitute new evidence that the Appeal Board cannot consider. Directive ¶ E3.1. 29. Applicant also claims that he did his best in filling out the SCA, including listing his debts. He notes that he listed some delinquent debts in his SCA and argues, why would he list some debts, if he intended to conceal any debts. Applicant raised this same issue below and the Judge addressed it by stating: Applicant did, in fact, list three past-due debts; and avers that the largest, alleged unlisted debt, for $1,060 (b.(2)), is a duplicate of one of those he did disclose. . . He further avers, “I did my best to list everything I had knowledge of.” Even assuming his averment as to the duplicate past-due debt is correct, it is clear from his January 2013 Subject Interview, to which Applicant had no objection, he was aware of at least four of the six remaining past-due debts (b.(3), b.(4), b.(6), and b.(7)). Furthermore, without letters of support from those who know Applicant and who can testify as to his truthfulness and veracity, I cannot find that Applicant’s not listing six past-due debts, totaling in excess of $1,100, was a simple oversight. This allegation is found against Applicant.1 A review of the subject interview does not support the Judge’s finding that Applicant was “aware” of four debts when he filled out his SCA. Instead, the subject interview reflects that Applicant “thought” each of those debts was for a specific purpose. His thinking a debt was for a specific purpose, after its existence is brought to his attention during the subject interview, does not equate to him being “aware” of that debt when he filled out the SCA. Rather, the subject interview reads in a way consistent with Applicant’s reaction to each debt as they were presented. We conclude the Judge erred in making that finding of fact. We also find persuasive Applicant’s argument about disclosing delinquent debts in his SCA. In that document, he disclosed three delinquent debts totaling about $5,600. As the Judge noted, excluding the alleged debt that was a duplicate of one Applicant had disclosed, he did not disclose six debts totaling about $1,100. Applicant appropriately raises the question of why would he disclose about 80% of his indebtedness and deliberately omit the remaining 20%. He adequately put the Government on notice of his financial problems. It is not reasonable to conclude that his 1 Decision at 2. failure to disclose the relatively small percentage of his remaining indebtedness constituted falsification. Applicant has consistently denied that he falsified his SCA. The burden was on the Government to establish either by direct or circumstantial evidence that Applicant deliberately falsified his SCA. Directive ¶ E3.1.14. From our review of the record, we conclude that the Government failed to establish by substantial evidence that Applicant deliberately failed to disclose debts in his SCA. See, e.g., ISCR Case No. 03-09483 at 3 (App. Bd. Nov. 17, 2004) for the proposition that proof of an omission, standing alone, does not establish or prove an applicant’s state of mind when the omission occurred. Based on the foregoing, the Judge’s adverse decision was arbitrary, capricious, and contrary to law.

ORDER

The Decision is REVERSED. 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 F. Duffy James F. Duffy Administrative Judge Member, Appeal Board