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ISCR Case 05-07183.a1 — CASE

ISCR Case 05-07183.a1denied

Case Headnote

ISCR Case No. 05-07183.a1

Jun 26, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant representing herself was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial was primarily based on the deliberate falsification of her security clearance application, specifically her failure to disclose prior criminal charges. Additionally, the applicant's ongoing financial difficulties were not sufficiently mitigated, despite her claims of engaging in counseling and establishing payment arrangements.

While the applicant received a favorable finding under Guideline J (Criminal Conduct), the disqualifying conditions related to personal conduct and financial considerations were not overcome. The appeal board affirmed the denial, emphasizing the applicant's burden to establish mitigation and the strong presumption against granting security clearances.

The decision highlighted that the applicant's deliberate misrepresentation of information on her application, combined with unmitigated financial issues, led to the denial of her security clearance.

Conditions Referenced

Disqualifying

AG ¶ 16raisedDeliberate FalsificationThe applicant's omission of prior criminal charges was found to be intentional.
AG ¶ 20raisedFinancial ConsiderationsThe applicant had a history of financial difficulties that were ongoing.

Mitigating

AG ¶ 20rejectedFinancial ConsiderationsThe applicant's financial issues were not mitigated as they were still present at the time of the decision.

Key Rule Quoted

“[T]here is a strong presumption against granting a security clearance.”
— Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)

Procedural Posture

SOR issuedJul 31, 2006
Answer filed—Applicant represented herself.
Hearing heldJan 31, 2007Decision made on the written record.
Decision dateJun 26, 2007Appeal affirmed.

Cite For

Deliberate Falsification of Security Clearance Applications Under Guideline E
Ongoing Financial Difficulties as a Disqualifying Condition Under Guideline F
Strong Presumption Against Granting Security Clearances as Established in Case Law.

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 allegations under Guidelines F, J, and E. The applicant argued that the Judge erred in finding her omission of information was deliberate and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the conclusions reached.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowShari Dam — denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline JGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge erred in concluding her falsification of the security clearance application was deliberate.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's unfavorable clearance decision under Guideline F was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Judge's conclusions regarding the applicant's deliberate falsification and the assessment of financial concerns. The Judge's decision was supported by substantial evidence and adhered to required procedures.

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
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 F; Guideline J; Guideline E DIGEST: The Judge was not bound, a s a matter of law, either to accept or reject Applicant’s explanation for her failure to disclose the pertinent information on her security clearance application. The Board may not consider new evidence on appeal. Adverse decision affirmed. CASENO: 05-07183.a1 DATE: 06/26/2007 DATE: June 26, 2007 In Re: ----------- SSN: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 05-07183

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 July 31, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations), Guideline J (Criminal Conduct) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested the case be decided The Judge’s favorable finding under Guideline J is not at issue in this appeal. on the written record. On January 31, 2007, after considering the record, Administrative Judge Shari Dam denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge erred in concluding Applicant’s falsification of her security clearance application was deliberate; whether the Judge’s unfavorable clearance decision under Guideline F is arbitrary, capricious, or contrary to law.1 (1) Applicant argues that she did not deliberately falsify her security clearance application by failing to disclose four prior criminal charges relating to worthless checks. In support of that argument, Applicant contends that she failed to list the charges due to an oversight, and she subsequently provided the correct information to the government once she realized the gravity of the situation. Applicant’s argument does not demonstrate that the Judge erred. The Judge had the opportunity to consider Applicant’s explanation for why she failed to disclose the information in question. 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 omission was deliberate and intentional. On this record, the Judge’s finding of deliberate falsification is sustainable. See Directive ¶ E3.1.32.1. (2) Applicant also argues that the Judge should have concluded that the security concerns raised by her history of financial difficulties had been mitigated because her indebtedness arose from circumstances beyond her control, and she has now received counseling and started to make payments on her outstanding debts. As attachments to her brief, Applicant submits new evidence, including four character reference letters, and a letter and statement of account from her credit counseling service which indicates that she is continuing to make payments on her outstanding debts in accordance with her established plan. Applicant’s arguments do not demonstrate that the Judge erred. The Board may not consider new evidence on appeal. See Directive ¶ E3.1.29. Accordingly, we may not consider the attachments to Applicant’s brief, and they do not demonstrate error on the part of the Judge. “[T]here is a strong presumption against granting a security clearance.” Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). Once the government th presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The application of disqualifying and mitigating conditions does not turn simply on a finding that one or more of them apply to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole. 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 that the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. The Applicant has not met her burden of demonstrating that the Judge erred in concluding that the Guideline F allegations had not been mitigated. Although Applicant strongly disagrees with the Judge’s conclusions, she has not established that those conclusions are arbitrary, capricious, or contrary to law. See Directive ¶ E3.1.32.3. We note that Applicant did not avail herself of the opportunity to submit evidence in response to the File of Relevant Material. In this case, the Judge found that Applicant had a history of not meeting financial obligations which extended over many years. At the time the case was submitted for decision, she still had outstanding debts and was still in the process of making arrangements to repay them. In light of the foregoing, the Judge could reasonably conclude that Applicant’s financial problems were recent and still ongoing. The favorable record evidence cited by 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). The Judge specifically noted Applicant’s arrangement with a credit counseling service and the payment of a debt. The Board does not review a case de novo. Given the record that was before her, the Judge’s ultimate unfavorable clearance decision under Guideline F is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, 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