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ISCR Case 06-23112.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date12/31/2007
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 06-23112.h1) →
Participants
Applicant Representation: Pro Se
Judge: Jeffrey D. Billett, Jean E. Smallin, William S. Fields
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline FFinancial Considerations · For Applicant
- Guideline JCriminal Conduct · Against Applicant

Similar decisions
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ISCR Case 06-23112.a1denied

Case Headnote

ISCR Case No. 06-23112.a1

Dec 31, 2007· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing himself, was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The denial stemmed from findings that the applicant deliberately falsified information on his security clearance application.

Specifically, the applicant's omissions on the application were determined to be intentional. While the applicant had a favorable military service record, this was deemed insufficient to mitigate the security concerns raised by the deliberate falsification.

The decision cited disqualifying conditions under Adjudicative Guidelines Paragraphs 15 and 16, with mitigating conditions under Paragraph 20 considered but ultimately not sufficient to overcome the security risks. The security clearance was therefore denied.

Conditions Referenced

Disqualifying

AG ¶ 16raisedDeliberate FalsificationThe Judge found that the applicant's omissions were deliberate.
AG ¶ 15raisedCriminal ConductThe applicant's conduct raised security concerns under this guideline.

Mitigating

AG ¶ 20rejectedMitigating EvidenceThe Judge found the mitigating evidence insufficient to overcome the disqualifying conduct.

Key Rule Quoted

“Once there has been a concern articulated regarding an applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance.”
— Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991).

Procedural Posture

SOR issuedMar 12, 2007
Answer filed—Applicant represented himself.
Hearing heldAug 30, 2007
Decision dateDec 31, 2007

Cite For

Findings of Deliberate Falsification Under Guideline E
Insufficiency of Mitigating Evidence to Overcome Disqualifying Conduct
Strong Presumption Against Granting Security Clearance After Security Concerns Are Raised.

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 security concerns under Guidelines E, F, and J. The applicant argued that the Judge erred in his findings and conclusions regarding deliberate falsification and mitigation of security concerns. The Board affirmed the Judge's decision, finding no harmful error in the Judge's conclusions and that the findings were supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMartin H. Mogul — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline FGuideline 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 regarding his military service.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argues that the Judge erred in concluding that his falsification of the security clearance application was deliberate.

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 findings were supported by substantial evidence and that any alleged errors were harmless, affirming the denial of the security clearance.

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

Jeffrey D. Billett
Jean E. Smallin
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

FOR OFFICIAL USE ONLY When unredacted this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies KEYWORD: Guideline E; Guideline J DIGEST: Even if the challenged finding was changed it would not have undermined the Judge’s conclusions. The Judge considered Applicant’s explanations but was not bound by them. The Judge’s findings of deliberate falsification are sustainable Adverse decision affirmed. CASENO: 06-23112.a1 DATE: 12/31/2007 DATE: December 31, 2007 In Re: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-23112

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 March 12, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of The Judge found in favor of Applicant under Guideline F. That favorable finding is not at issue on appeal. the basis for that decision—security concerns raised under Guideline F (Financial Considerations), 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 August 30, 2007, after the hearing, Administrative Judge Martin H. Mogul 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 (1) Applicant asserts that the Judge erred in findings that Applicant had served in the U.S. Navy from 1980 through 1986 and had resigned when his shoulder was broken, when in fact Applicant had served from 1980 to 1997 and had medically retired because of the injury. 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). In this instance, 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). Considering the record as a whole, the Judge’s material findings with respect to Applicant’s conduct of security concern 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 unfavorable information of security concern in response to four different questions. In support of this contention, he argues that the omission of the information was due to a misreading of the questions or a lack of information on his part. 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 omissions were 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).

(3) Finally, Applicant contends that the Judge erred in concluding that the security concerns raised by his falsifications had not been mitigated, based upon the favorable record evidence, particularly his lengthy, honorable military service. Again, Applicant has not demonstrated that the Judge erred. Once there has been a concern articulated regarding an applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). th After the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. 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. See, e.g., ISCR Case No. 06-17691 at 3 (App. Bd. Jul.19, 2003). 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 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 the government’s other 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. Jun. 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: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board