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ISCR Case 05-05439.a1 — CASE

ISCR Case 05-05439.a1denied

Case Headnote

ISCR Case No. 05-05439.a1

May 29, 2007· Hon. Jean E. Smallin· appeal

Summary

An applicant, representing himself, was denied a security clearance due to unmitigated concerns under Guideline J (Criminal Conduct) and Guideline E (Personal Conduct).

The denial stemmed primarily from the applicant's deliberate and intentional omissions on his security clearance application. The judge determined that these omissions were significant and directly contributed to the unmitigated security concerns.

While a favorable finding was made under Guideline D (Sexual Behavior), this did not outweigh the issues identified under Guidelines J and E. Ultimately, the judge concluded that the applicant's claims and history did not mitigate the established security concerns, leading to the denial of the clearance.

Conditions Referenced

Disqualifying

AG JraisedCriminal Conduct
AG EraisedPersonal Conduct

Mitigating

AG DappliedSexual Behavior

Key Rule Quoted

“The federal government need not wait until an applicant actually mishandles or fails to properly safeguard classified information before it can deny or revoke access to such information.”
— Adams v. Laird, 420 F.2d 230, 238-239 (D.C. Cir. 1969)

Procedural Posture

SOR issuedJan 31, 2006
Answer filed—
Hearing heldOct 16, 2006
Decision dateMay 29, 2007

Cite For

Deliberate Falsification of Security Clearance Application Under Guideline E
Weighing of Mitigating Evidence Against Disqualifying Conduct
Nexus Between Conduct and Security Eligibility Under Guidelines J and E

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 who was denied based on concerns under Guidelines J and E. The applicant argued that the Judge erred in finding deliberate falsification of his application and in concluding that security concerns had not been mitigated. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoseph Testan — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline JGuideline EGuideline D

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge erred by concluding that the security concerns raised under Guidelines G and F had not been mitigated.
Erroneous finding of fact — raised by the applicantRejected
Applicant contended that the Judge erred in concluding that his falsification of his security clearance application was deliberate.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the Judge properly weighed the evidence in reaching his decision.

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

Jean E. Smallin
William S. Fields
James E. Moody

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 J; Guideline E DIGEST: The Judge was not bound as a matter of law to accept or reject Applicant’s explanation Adverse decision affirmed. CASENO: 05-05439.a1 DATE: 05/29/2007 DATE: May 29, 2007 In Re: ---------- SSN:------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 05-05439

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On January 31, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline J (Criminal Conduct), Guideline E (Personal Conduct) and Guideline D (Sexual Behavior) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On October The Judge found in favor of Applicant under Guideline D. That favorable finding is not at issue on appeal. 16, 2006, after the hearing, Administrative Judge Joseph Testan denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.1 Applicant raised the following issues on appeal: whether the Judge erred in concluding Applicant’s falsification of his security clearance application was deliberate; and whether the Judge erred by concluding that the security concerns raised under Guidelines G and F had not been mitigated. (1) Applicant argues that he did not deliberately falsify his security clearance application by failing to disclose two prior felony charges and three prior misdemeanor charges in response to two different questions. In support of that argument, Applicant contends that he did not list the charges because he was uncertain as to their nature and disposition, and he believed that the government had the information about them already. Applicant’s argument does not demonstrate that the Judge erred. The Judge had the opportunity to consider Applicant’s explanation for why he failed to disclose the information in question on his security clearance application. The Judge was not bound, as a matter of law, to accept or reject Applicant’s explanation. The Judge considered Applicant’s explanation in light of the record evidence as a whole, and concluded there was a sufficient basis to find that Applicant’s omissions were deliberate and intentional. On this record, the Judge’s finding of deliberate falsification is sustainable. See Directive ¶ E3.1.32.1. (2) Applicant also contends that the Judge erred in concluding that the security concerns raised under Guidelines G and F had not been mitigated. In support of that argument, Applicant essentially restates the facts of his case and argues that the Judge incorrectly weighed the evidence, by failing to given adequate consideration to the fact that he has held a security clearance for approximately 17 years without any problems, and that the disqualifying conduct essentially amounts to a number of isolated incidents. Based upon the record as a whole, Applicant asserts that his conduct was not of sufficient seriousness to be of security concern. Applicant’s arguments do not demonstrate error on the part of the Judge. The Directive presumes there is a nexus or rational connection between proven conduct under any of the Guidelines and an applicant’s security eligibility. See, e.g., ISCR Case No. 02-22325 at 3-4 (App. Bd. July 30, 2004). Security clearance determinations are not limited to consideration of work performance or conduct during duty hours. See, e.g., ISCR Case No. 04-08623 at 5 (App. Bd. July 29, 2005). The federal government need not wait until an applicant actually mishandles or fails to properly safeguard classified information before it can deny or revoke access to such information. See Adams v. Laird, 420 F.2d 230, 238-239 (D.C. Cir. 1969). The absence of security violations does not bar or preclude an adverse security clearance decision. See ISCR Case No. 01-03357 at 4 (App. Bd. Dec. 13, 2005). The application of disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. See, e.g., ISCR Case No. 01-14740 at 7 (App. Bd. Jan.15, 2003). Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. An applicant’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. In this case, the Judge properly considered the significance of Applicant’s pattern of conduct as a whole, rather than analyzing each separate incident in a piecemeal fashion. See, e.g., ISCR Case No. 04-12648 at 3-4 (App. Bd. Oct. 20, 2006) citing Raffone v. Adams, 468 F. 2d 860 (2 Cir. 1972) nd (taken together, separate events may have a significance that is missing when each event is viewed in isolation). He reasonably weighed the mitigating evidence against the seriousness of the disqualifying conduct, and considered the possible application of relevant mitigating conditions. The Judge found in favor of Applicant under one of the Guidelines. However, he reasonably explained why there was insufficient mitigating evidence to overcome the government’s other security concerns. The Board does not review a case de novo. The favorable evidence cited by the Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 02-28041 at 4 (App. Bd. June 29, 2005). Given the record that was before him, the Judge’s ultimate unfavorable clearance decision under Guidelines J and E is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board