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ISCR Case 15-07438.a1 — CASE

ISCR Case 15-07438.a1denied

Case Headnote

ISCR Case No. 15-07438.a1

Mar 16, 2018· Hon. Charles C. Hale· appeal

Summary

An applicant, represented by counsel, was denied a security clearance under Guideline E (Personal Conduct) due to deliberate misrepresentation of his academic record. The applicant had falsified his academic credentials on multiple security clearance applications and during interviews.

During testimony, the applicant admitted to these falsifications and acknowledged that completing his degree would not mitigate the concerns arising from his untruthful conduct. The judge determined that the applicant's failure to provide truthful information during the clearance process was a sufficient basis for denial.

The adverse decision was subsequently affirmed on appeal, with the judge finding that the applicant's deliberate misrepresentations raised significant security concerns, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

E2raisedDeliberate Misrepresentation of Information

Key Rule Quoted

“Refusal to provide truthful answers during the security clearance process will normally result in an unfavorable national security eligibility determination.”
— Directive, Encl. 2, App. A ¶¶ 15 and 15(b)

Procedural Posture

SOR issuedMay 23, 2016
Answer filed—
Hearing heldNov 30, 2017
Decision dateMar 16, 2018

Cite For

Deliberate Misrepresentation of Academic Credentials Under Guideline E
Impact of Admissions During Testimony on Security Clearance Decisions
Affirmation of Adverse Decisions Based on Failure to Provide Truthful Information

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 a denial of a security clearance based on the applicant's deliberate misrepresentation of his academic record. The applicant argued that the Judge failed to apply mitigating conditions properly. The Board affirmed the Judge's decision, finding no harmful error and that the applicant's misconduct justified the denial.

Appealed bythe applicant

Applicant representationAttorney

Judge belowNichole L. Noel — denied the clearance

Decided ona hearing

Guidelines belowGuideline E

What the Board reviewed

Mitigation wrongly applied / not applied — raised by the applicantRejected
The Judge failed properly to apply the mitigating conditions.
No specific harmful error alleged — raised by the applicantRejected
No specific harmful error was alleged.

Why the Board ruled this way

The Board found that the Judge's adverse decision was supported by substantial evidence and that the applicant's misrepresentation of his academic record warranted denial of the security clearance. The Board also noted that the Judge's findings addressed all allegations despite a formal oversight in the findings.

Standard of review applied

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

Appeal Board panel

James E. Moody
James F. Duffy
Charles C. Hale

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: Applicant’s deliberate misrepresentation of his academic record, especially in clearance applications and subsequent interviews, supports the Judge’s adverse decision. In fact, Applicant admitted during his testimony that completion of a degree would not mitigate concerns arising from his falsifications. We find no reason to disturb the Judge’s adverse conclusions. Adverse decision affirmed. CASENO: 15-07438.a1 DATE: 03/16/2018 DATE: March 16, 2018 In Re: -------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-07438

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Gregory F. Greiner, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On May 23, 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 Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 30, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Nichole L. Noel 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 failed properly to apply the mitigating conditions. Consistent with the following, we affirm. Judge’s Findings of Fact and Analysis Applicant first received a security clearance in 2013. He has worked for his current employer since October 2015. Though he attended college, he did not complete all of the requirements for an academic degree. He did, however, participate in his college’s 2010 commencement service. Realizing that the lack of a degree hampered his job search, he listed a bachelor’s degree on his resume. He has applied for and obtained three positions in addition to his current one by using false education credentials. Moreover, he completed questionnaires for clearance investigations in 2012, 2013, and 2015. On each one, he stated that he had received a college degree in 2010. He made similar statements to clearance investigators in 2012 and again in 2015. Finally, in a follow-up interview in August 2015, he admitted his falsifications. As of the hearing, Applicant had not admitted his misconduct to his employer or to family members. Applicant returned to school in early 2017 and is expected to complete his degree requirements. The Judge noted that Applicant admitted his misconduct only after being confronted with it by a clearance investigator. She stated that Applicant’s failure to provide truthful information during the clearance process provides a reason to deny him a clearance. She stated that Applicant repeated his misconduct several times and cited to evidence that he still had not disclosed his misconduct to his employer as of the close of the record.

DISCUSSION

Applicant contends that he has demonstrated mitigation, stating that he has now completed his degree and, therefore, will not be in a position to re-engage in the conduct at issue in this case. Actual completion of the degree is new evidence, which we cannot consider. Directive ¶ E3.1.29. However, Applicant testified that he expected to complete the degree a couple of weeks after the hearing. Tr. at 42. To the extent that he is arguing that the Judge failed to consider this testimony, he has not rebutted the presumption that the Judge considered all of the evidence, nor has he shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 17-00257 at 3 (App. Bd. Dec. 7, 2017). Applicant’s deliberate misrepresentation of his academic record, especially in clearance applications and subsequent interviews, supports the Judge’s adverse decision. In fact, Applicant admitted during his testimony that completion of a degree would not mitigate concerns arising from his falsifications. Tr. at 42.1 We find no reason to disturb the Judge’s adverse conclusions. Applicant points out an error in the Judge’s Formal Findings. The SOR alleged five deliberate misrepresentations, designated SOR ¶¶ 1a-e. However, the Judge entered a Formal Finding only for ¶ 1a, which concerned the falsification in Applicant’s 2012 clearance application. She entered no other Formal Findings. A Judge should enter findings and conclusions on all of the allegations in the SOR. Directive ¶ E3.1.25. However, the Judge’s findings of fact and analysis addressed the entirety of the allegations contained in Applicant’s SOR, finding that he had engaged in all of the misconduct raised therein. Therefore, we conclude that the omission in her Formal Findings is simply an oversight. We find no reason to remand the case to the Judge, since corrective action would not change the overall outcome of the case. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on this record. Refusal to provide truthful answers during the security clearance process “will normally result in an unfavorable national security eligibility determination. . . .” Directive, Encl. 2, App. A ¶¶ 15 and 15(b). Deliberate false statements to an employer can raise concerns about an applicant’s eligibility for access to classified information as well. Id. at ¶ 16(b). “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, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

ORDER

The Decision is AFFIRMED. Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board Signed: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board

FOOTNOTES

1 “[Judge]: So you are scheduled to finish your last class this month . . . do you think that will mitigate the initial falsification? [Applicant]: No, it won’t. I know I lied about it. . .”