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ISCR Case 06-17691.a1 — CASE

ISCR Case 06-17691.a1denied

Case Headnote

ISCR Case No. 06-17691.a1

Jul 19, 2007· Hon. Jean E. Smallin· appeal

Summary

An applicant, representing himself, was denied a security clearance based on concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The denial was primarily due to the deliberate falsification of his security clearance application and his criminal conduct.

Specifically, the applicant omitted prior arrests from his application, which constituted deliberate falsification under Guideline E. Furthermore, his criminal conduct was deemed serious, falling under Guideline J.

While mitigating conditions E3 and J2 were considered, they were not sufficient to overcome the disqualifying conditions J1 and E2. The judges found substantial evidence supporting the deliberate falsification and the seriousness of the criminal conduct, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

J1raisedCriminal Conduct
E2raisedDeliberate Falsification of Information

Mitigating

E3rejectedThe Falsification Was an Isolated IncidentThe judge found the applicant's conduct serious and not mitigated.
J2rejectedCriminal Conduct Was Not RecentThe judge found the applicant's criminal conduct serious and not mitigated.

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 issuedAug 17, 2006
Answer filed—
Hearing heldDec 29, 2006
Decision dateJul 19, 2007

Cite For

Deliberate Falsification of Security Clearance Applications Under Guideline E
Seriousness of Criminal Conduct Under Guideline J
Presumption Against Granting Security Clearances

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 concerns under Guidelines E and J. The Applicant argued that the Judge erred in his findings and conclusions regarding his criminal conduct and the alleged falsification of his security clearance application. The Board affirmed the Judge's decision, finding no harmful error in the Judge's conclusions and that the evidence supported the denial of the clearance.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJames A. Young — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contends that the Judge erred in concluding that the security concerns raised under Guidelines E and J had not been mitigated.
Erroneous finding of fact — raised by the applicantRejected
Applicant asserts that the Judge erred in findings that Applicant’s criminal offenses were committed at his girlfriend’s house.
Credibility determination — raised by the applicantRejected
Applicant contends that he did not deliberately falsify his security clearance application.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge's material findings regarding Applicant's criminal conduct were supported by substantial evidence and reflected a reasonable interpretation of the record. The Board also determined that the Judge did not err in concluding that the security concerns had not been mitigated.

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
James E. Moody
William S. Fields

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; Guideline J DIGEST: The Judge’s material findings with respect to Applicant’s criminal conduct reflect a reasonable interpretation of the record evidence. Adverse decision affirmed. CASENO: 06-17691.a1 DATE: 07/19/2007 DATE: July 19, 2007 In Re: ------ SSN: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-17691

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 August 17, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline E (Personal Conduct) and Guideline J (Criminal 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, Administrative Judge James A. Young 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 his findings; whether the Judge erred in concluding Applicant’s falsification of his security clearance application was deliberate; whether the Judge erred by concluding that the security concerns raised under Guidelines E and J had not been mitigated. (1) Applicant asserts that the Judge erred in findings that Applicant’s criminal offenses were committed at his girl friend’s house, when in fact the lease for the house was in his name as well as his girl friend’s name. However, even if the challenged finding was changed to reflect Applicant’s interpretation of the record evidence, it would not have undermined the Judge’s conclusions. Therefore, any such error would be at most harmless. See ISCR Case No. 05-08459 at 2, n.1 (App. Bd. Nov. 16, 2006). Applicant also asserts that the Judge erred in finding Applicant had committed two of the criminal offences alleged in the SOR because the charges for both were eventually dismissed. In this regard, Applicant has not met his burden of demonstrating that the Judge’s material findings with respect to Applicant’s conduct of security concern do not reflect a reasonable or plausible interpretation of the record evidence. The Board’s review of a Judge’s findings is limited to determining if they are supported by substantial evidence—such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record. Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620, (1966). A Judge can find an applicant has engaged in criminal conduct even if the criminal charges against the applicant were dropped or dismissed. See ISCR Case No. 03-11906 at 3 (App. Bd. July 19, 2005); ISCR Case No. 03-21761 at 5 (App. Bd. Nov. 28, 2005). Considering the record as a whole, the Judge’s material findings with respect to Applicant’s criminal conduct reflect a reasonable interpretation of the record evidence and are supported by substantial evidence. See, e.g., ISCR Case No. 03-21933 at 2 (App. Bd. Aug. 18, 2006). (2) Applicant also contends that he did not deliberately falsify his security clearance application by failing to disclose that he had been arrested on five criminal charges in 2002 and one criminal charge 2003. In support of this contention, he argues that the omission of the information was due to a misreading the question, and he 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 he 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 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 security concerns raised by Applicant’s falsification 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). (3) Finally, Applicant contends that the Judge erred in concluding that the security concerns raised by his disqualifying conduct had not been mitigated. With respect to the falsification of his security clearance application, Applicant argues that the Judge should have found the disqualifying conduct mitigated, as a matter of law, because the conduct was an isolated incident; it was not recent; it was not likely to recur; and Applicant had subsequently provided the correct information voluntarily. With respect to his criminal conduct Applicant argues the Judge should have found the disqualifying conduct mitigated, as a matter of law, because two of the charges resulted in dismissals; the conduct was unsubstantiated; the conduct was an isolated incident; the conduct was not likely to recur; and Applicant was pressured to commit the conduct. The Board does not find these arguments persuasive. “[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 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 weighed the mitigating evidence offered by Applicant against the recency and seriousness of the disqualifying conduct, and considered the possible application of relevant mitigating conditions and whole person factors. The Judge reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome the government’s security 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 clearance decision under Guidelines E and J 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board