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ISCR Case 06-02549.a1 — CASE

ISCR Case 06-02549.a1denied

Case Headnote

ISCR Case No. 06-02549.a1

deniedJul 3, 2007· Hon. Jean E. Smallin· appeal

Summary

An applicant representing herself was denied a trustworthiness designation for an ADP position, with the decision citing concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The judge determined that the applicant deliberately falsified information on public trust position questionnaires concerning delinquent debts.

Specifically, the applicant's omissions on these questionnaires were found to be intentional. While mitigating conditions under Guideline F (F3) were considered, they did not outweigh the disqualifying conditions raised under Guideline E (E2).

The judge concluded that the applicant's claims of misunderstanding were insufficient to mitigate the trustworthiness concerns. Ultimately, the applicant's favorable evidence did not outweigh her pattern of dishonest conduct, leading to the denial of the trustworthiness designation.

Why the Applicant Was Denied

The applicant's omissions on the questionnaires were found to be deliberate and intentional.
The judge concluded that the applicant's favorable evidence did not outweigh her pattern of dishonest conduct.

Conditions Referenced

Disqualifying

E2raisedPersonal ConductThe applicant's deliberate falsification of information.

Mitigating

F3appliedFinancial ConsiderationsThe judge found in favor of the applicant under Guideline F.

Key Rule Quoted

“There is a rebuttable presumption that the Judge considered all the record evidence unless he specifically states otherwise.”
— DOHA Case No. 96-0228 at 3 (App. Bd. Apr. 3, 1997)

Procedural Posture

SOR issuedMay 18, 2006
Answer filed—
Hearing heldDec 29, 2006
Decision dateJul 3, 2007

Cite For

Deliberate Falsification of Information Under Guideline E
Insufficient Mitigation of Trustworthiness Concerns Despite Favorable Evidence
Rebuttable Presumption of Evidence Consideration by the Judge

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

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: There is a rebuttable presumption that the Judge considered all the record evidence. The Judge specifically discussed the evidence cited by Applicant. Adverse decision affirmed. CASENO: 06-02549.a1 DATE: 07/03/2007 DATE: July 3, 2007 In Re: ------- SSN: ------- Applicant for ADP I/II/III Position ) ) ) ) ) ) ) ) ADP Case No. 06-02549

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) proposed to deny or revoke access to automated information systems in ADP-I/II/III sensitivity positions for Applicant. On May 18, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—trustworthiness 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 hearing. On December 29, 2006, after the hearing, Decision at 4 & 6. Id at 6. Administrative Judge Paul J. Mason denied Applicant’s request for a trustworthiness designation. 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 two public trust position questionnaires was deliberate; whether the Judge erred by concluding that the trustworthiness concerns raised under Guideline E had not been mitigated. (1) Applicant contends that she did not deliberately falsify two public trust positions questionnaires by failing to disclose her debts that were delinquent for over 180 days. In support of this contention, she argues that the omission of the information was due to a misunderstanding on her part, and she subsequently provided the correct information. Applicant has not demonstrated 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 omissions were deliberate and intentional. Given the record, the Judge’s findings of deliberate falsification are sustainable. See Directive ¶ E3.1.32.1; ISCR Case No. 04-03849 at 2-3 (App. Bd. Jan. 26, 2006). The trustworthiness concerns raised by Applicant’s falsifications were not necessarily overcome by Applicant’s subsequent disclosures to the government. See ISCR Case No. 01-19513 at 5 (App. Bd. Jan. 22, 2004). (2) Applicant also argues that the Judge erred in concluding that the trustworthiness concerns raised under Guideline E had not been mitigated, in that he did not apply a whole person analysis, and gave insufficient weight to the favorable evidence concerning Applicant’s work ethic, work history and credible character. Applicant has not demonstrated that the Judge erred. There is a rebuttable presumption that the Judge considered all the record evidence unless he specifically states otherwise. See, e.g., DOHA Case No. 96-0228 at 3 (App. Bd. Apr. 3, 1997). The Judge is not required to cite or discuss every piece of record evidence. See, e.g., DISCR Case No. 90-1596 at 5 (App. Bd. Sept. 18, 1992). A review of the record indicates that the Judge’s whole person analysis complies with the requirements of Directive ¶ E2.2.1, in that the Judge considered the totality of Applicant’s conduct in reaching his decision. See, e.g., ISCR Case No. 03-23829 at 4 (App. Bd. Apr. 27, 2007). The Judge specifically discussed the evidence to which Applicant refers in both his findings of fact and his conclusions. He ultimately concluded that the evidence was insufficient to mitigate the government’s trustworthiness concerns stating: “Applicant’s character statements and job performance evaluations constitute strong evidence weighing in her favor, but it falls short of overcoming Applicant’s pattern of dishonest conduct.”2 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. 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 trustworthiness determination. 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 weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct, and considered the possible application of relevant mitigating conditions. He found in favor of Applicant under Guideline F. However, the Judge reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome all the government’s trustworthiness concerns. The Board does not review a case de novo. 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). Given the record that was before him, the Judge’s ultimate unfavorable trustworthiness determination under Guideline E is sustainable.

ORDER

The determination of the Judge denying Applicant access to automated information systems in ADP I/II/II sensitivity positions 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