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ISCR Case 16-03500.a1 — CASE

ISCR Case 16-03500.a1denied

Case Headnote

ISCR Case No. 16-03500.a1

Apr 6, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A 51-year-old military retiree and defense contractor employee was denied a security clearance under Guideline E (Personal Conduct). The denial stemmed from the applicant's falsification of a security certification and the provision of misleading statements during a background interview. These actions were identified as disqualifying conditions E2.A5.1 and E2.A5.2.

The applicant's lack of candor raised significant doubts regarding his reliability and trustworthiness, leading to the initial denial. Upon appeal, the board affirmed the decision, concluding that the applicant's arguments did not demonstrate that the judge's initial ruling was arbitrary or contrary to law.

The appeal board cited a pattern of dishonesty and a lack of candor as the primary reasons for upholding the denial, emphasizing that these issues presented significant security concerns.

Conditions Referenced

Disqualifying

E2.A5.1raisedDeliberate Omission, Concealment, or Falsification of Relevant Facts From Any Personnel Security Questionnaire or During Any Personnel Security Interview.
E2.A5.2raisedA Pattern of Dishonesty or Rule Violations.

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 issuedJan 5, 2017
Answer filed—
Hearing heldJan 16, 2018
Decision dateApr 6, 2018

Cite For

Pattern of Dishonesty Under Guideline E
Lack of Candor Impacting Security Clearance Eligibility
Affirmation of Adverse Decisions Based on Falsification of 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 was brought by the applicant after the Administrative Judge denied his request for a security clearance based on falsification of a security certification. The applicant argued that the Judge did not properly weigh all relevant evidence. The Board affirmed the Judge's decision, finding no harmful error in the analysis.

Appealed bythe applicant

Applicant representationAttorney

Judge belowEric H. Borgstrom — denied the clearance

Decided ona hearing

Guidelines belowGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argues that the Judge did not properly weigh and consider all relevant evidence.

Why the Board ruled this way

The Board found that the Judge's decision was not arbitrary, capricious, or contrary to law, and that the Judge properly considered the evidence presented.

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
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 E DIGEST: Applicant argues that the Judge did not properly weigh and consider all relevant evidence. In making those arguments, he cites to such matters as the amount of time that has passed since the conduct in question, his character evidence, his excellent work performance, and his sworn statement of intent. We note the Judge made findings about those matters. Applicant’s arguments are neither sufficient to rebut the presumption that the Judge considered all of the record evidence nor enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Adverse decision affirmed. CASENO: 16-03500.a1 DATE: 04/06/2018 DATE: April 6, 2018 In Re: --------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-03500

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On January 5, 2017, 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). Department Counsel requested a hearing. On January 16, 2018, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Eric H. Borgstrom 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 adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant is a 51-year-old military retiree who is an employee of a defense contractor. After twice failing a security certification test in 2014, he altered another employee’s certification to reflect he passed the test and verbally represented to his supervisor that he passed the test. He forward the false certification to his employer who later discovered it was falsified. He was terminated from that job. He falsified the certification because he was concerned he would lose his job without it. In a security clearance application in 2016, Applicant disclosed he lost a job because he did not have a security certification but omitted that he had falsified the certification. During a subsequent background interview, he stated that he was terminated from the job for failing the certification and that he has no other problems with his employment. Upon further questioning, he stated he passed the security certification test and denied any investigation into its falsification. During the interview, he later admitted he falsified the security certification and claimed he did not disclose the falsification earlier because he had forgotten the incident. At the hearing, he admitted he falsified the security certification and initially denied deliberately omitting or providing misleading information during the interview. “In his closing argument, Applicant admitted ‘misleading his employer and the investigator.’” Decision at 3, citing Hearing Exhibit IV. Applicant’s coworkers have a high regard for his character and work performance. Those coworkers are aware of his false certification, but there is no record evidence that they are aware of his deliberate omissions during the background interview. He submitted a sworn statement of intent to abstain from making misrepresentations to his employer or Government representatives. The Judge’s Analysis Applicant’s falsification of the security certification and his deliberate false statements to his employer and the background investigator establish a pattern of dishonesty. He did not disclose the falsification of the security certification until confronted. “At the hearing, [he] initially denied deliberately omitting relevant information during his [background] interview, but he later admitted he had not been forthright and candid to the investigator.” Decision at 5. He did not mitigate the security concerns arising from his falsifications and omissions. His lack of candor casts doubt on his current reliability, trustworthiness, and good judgment.

DISCUSSION

Applicant argues that the Judge did not properly weigh and consider all relevant evidence. In making those arguments, he cites to such matters as the amount of time that has passed since the conduct in question, his character evidence, his excellent work performance, and his sworn statement of intent. We note the Judge made findings about those matters. Applicant’s arguments are neither sufficient to rebut the presumption that the Judge considered all of the record evidence nor enough 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. 17-00257 at 3 (App. Bd. Dec. 7, 2017). We give due consideration to the Hearing Office case that Applicant cited, but it is neither binding precedent on the Appeal Board nor sufficient to undermine the Judge’s decision. Id. Additionally, Applicant has failed to establish the Judge committed harmful error in the whole-person analysis. 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, 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: Michael Ra’anan Michael 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