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ISCR Case 19-01545.a1 — CASE

ISCR Case 19-01545.a1denied

Case Headnote

ISCR Case No. 19-01545.a1

Jan 23, 2020· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance primarily due to significant undisclosed delinquent debts and a lack of candor on his application. The applicant failed to report approximately $79,000 in delinquent debts, which constituted a disqualifying condition under Guideline F (Financial Considerations).

Further, the applicant's explanations for these omissions were deemed incredible, particularly given his detailed responses to other application questions, indicating a deliberate attempt to conceal information. This lack of candor raised concerns under Guideline E (Personal Conduct). The applicant also did not demonstrate responsible financial management, as he only began addressing his debts after his security clearance interview.

The appeal board affirmed the denial, concluding that the applicant had not taken responsible action regarding his financial issues and that his explanations for the omissions lacked credibility. The denial was upheld based on these findings.

Conditions Referenced

Disqualifying

AG ¶ 20raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

Key Rule Quoted

“Refusal to provide truthful answers during the security clearance process will normally result in an unfavorable national security eligibility determination.”

Procedural Posture

SOR issuedJul 17, 2019
Answer filed—
Hearing held—Applicant requested a decision on the written record.
Decision dateJan 23, 2020Appeal board decision affirmed the denial.

Cite For

Deliberate Omissions in Security Clearance Applications Under Guideline E
Financial Considerations Impacting Security Clearance Under Guideline F
Credibility Assessments of Applicant's Explanations for Omissions in Security Clearance Applications

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 financial considerations and personal conduct. The applicant argued that his omissions in the security clearance application were not deliberate and that the Judge's decision was arbitrary. The Board affirmed the Judge's decision, finding substantial evidence supporting the conclusion that the omissions were deliberate and that the decision was not arbitrary or capricious.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCarol G. Ricciardello — denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge erred in finding that his omissions from his security clearance application were deliberate.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the Judge did not err in concluding that the applicant's omissions were deliberate. The Board also determined that the Judge's decision was not arbitrary, capricious, or contrary to law.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealDeference 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 E DIGEST: Applicant denies that his SCA omissions were deliberate, arguing that there were multiple windows open on his computer screen at the time he completed his SCA and that he became confused. When an applicant denies that a false statement was intentional, the Judge should evaluate his mens rea in light of the entirety of the record evidence. Adverse decision is affirmed. CASE NO: 19-01545.a1 DATE: 01/23/2020 DATE: January 23, 2020 ) In Re: ) ) --------------------- ) ISCR Case No. 19-01545

) ) Applicant for Security Clearance ) )

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 July 17, 2019, 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 November 18, 2019, after considering the record, 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 erred in finding that his omissions from his security clearance application (SCA) were deliberate 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’s SOR alleged that he had ten delinquent consumer debts, a medical debt, and eight delinquent student loans. The total amount of Applicant’s delinquent debts was about $79,000. He attributed his financial problems to four months of unemployment, medical expenses, and a divorce. He has made some payments toward satisfying the student loans and has entered into a rehabilitation plan for them. The Judge noted, however, that these debts became delinquent in 2014 but Applicant did not begin to address them until 2019. Applicant has been working with a debt resolution company that successfully disputed two of the SOR debts. He claims that he inherited some money from his father which he will use to pay off his debts, although he did not state the actual amount. When he completed his SCA, Applicant did not disclose any of his delinquent debts. Applicant admitted with an explanation in his SOR Response that he answered “no” to the question regarding financial problems. In his Response to the File of Relevant Material (FORM), Applicant stated that he thought the interviewer was asking about his ability to pay his current bills. Applicant acknowledged that he knew about the majority of his debts and did not know why he answered the SCA question as he did. He stated that he had been rushed to complete the SCA. The Judge’s Analysis The Judge entered favorable findings about the two debts that had been removed from Applicant’s credit report. She arrived at the opposite conclusion regarding the remainder, on the ground that Applicant had not demonstrated resolution of any of them. She noted his payments toward his student loans. However, she also noted that he did not begin to address them until after his security clearance interview, which placed him on notice that his clearance was in jeopardy. Though noting circumstances beyond Applicant’s control that affected his debts, she concluded that he had not demonstrated responsible action in regard to them. Concerning the SCA omissions alleged under Guideline E, the Judge cited to Applicant’s explanation that he had been rushed and made an honest mistake. She stated, however, that Applicant had answered other questions on the SCA in some detail, and she cited to his initial denial of financial problems during his interview, finding Applicant’s explanation that he misunderstood the investigator’s question to be lacking in credibility. She found that Applicant had deliberately omitted material information from his SCA and that he had made no good-faith effort to correct the omissions before he was confronted with them.

DISCUSSION

Applicant’s appeal brief includes information from outside the record, which we cannot consider. Directive ¶ E3.1.29. Applicant denies that his SCA omissions were deliberate, arguing that there were multiple windows open on his computer screen at the time he completed his SCA and that he became confused. When an applicant denies that a false statement was intentional, the Judge should evaluate his 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 explanation Applicant provided in his appeal brief, in addition to being new evidence, is different from, if not inconsistent with, his FORM Response described above and with his Answer to the SOR, in which he stated simply that his denials of financial problems were “not what I expected to answer.” We note the Judge’s finding that Applicant apparently took care elsewhere in the SCA to provide detailed information. We also note evidence that Applicant attended college and that he has prior experience in completing an SCA. All in all, the challenged finding is supported by substantial evidence and is sustainable. See, e.g., ISCR Case No. 18-01564 at 3 (App. Bd. May 30, 2019). Applicant cites to favorable evidence, such as his efforts at paying his student loans and his rehabilitation program for the loans; his having hired a debt resolution company; his successful dispute of two debts; his explanation for his initial denial to the interviewer of financial problems, and his having held a clearance for many years without incident or concern. These were all matters that the Judge was required to consider, along with all the other evidence in the record. However, a Judge is not expected explicitly to discuss all aspects of an applicant’s record, which would be an impossibility. See, e.g., ISCR Case No. 16-02243 at 3 (App. Bd. Nov. 30, 2018). Applicant’s arguments on appeal are not enough to rebut the presumption that the Judge considered all of the evidence in the record, nor are they 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. 18-01482 at 2 (App. Bd. Sep. 6, 2019). The record supports a conclusion that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). Regarding Applicant’s deliberate omissions, the Directive states that refusal to provide truthful answers during the security clearance process “will normally result in an unfavorable national security eligibility determination [or] security clearance action[.]” Directive, Encl. 2 , App. A ¶ 15. See also ISCR Case No. 15-08255 at 3 (App. Bd. Aug. 22, 2017). The Judge’s adverse 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 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