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ISCR Case 06-25322.a1 — CASE

ISCR Case 06-25322.a1denied

Case Headnote

ISCR Case No. 06-25322.a1

Jul 3, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

A former U.S. Army member was denied a security clearance due to unmitigated concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The applicant deliberately falsified his security clearance application by omitting details about his court-martial history.

The judge determined that the applicant's explanations for these omissions were insufficient and unconvincing. Consequently, the applicant failed to demonstrate that the security concerns raised by his actions had been mitigated.

The denial was based on the seriousness of the applicant's deliberate falsification and his inability to resolve the security concerns stemming from his criminal conduct and lack of candor.

Conditions Referenced

Disqualifying

AG JraisedCriminal Conduct
AG EraisedPersonal Conduct

Key Rule Quoted

“Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.”
— Directive ¶ E3.1.15.

Procedural Posture

SOR issuedOct 18, 2007
Answer filed—
Hearing heldMay 24, 2008
Decision dateJul 3, 2008

Cite For

Deliberate Falsification of Security Clearance Applications Under Guideline E
Unmitigated Security Concerns Under Guideline J
Burden of Proof Shifts to Applicant to Establish Mitigation After Government Raises Security Concerns

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 of criminal conduct and personal conduct. The applicant argued that the Judge erred in finding his omissions deliberate and in concluding that the security concerns had not been mitigated. The Board affirmed the Judge's decision, finding no harmful error in the conclusions reached.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMark E. Curry — denied the clearance

Decided ona hearing

Guidelines belowGuideline JGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contends that the Judge erred in concluding his falsification of the security clearance application was deliberate.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argues that the Judge erred by concluding that the security concerns raised under Guidelines J and E had not been mitigated.

Why the Board ruled this way

The Board found that the Judge's conclusions regarding the applicant's deliberate falsification and the lack of mitigation were supported by substantial evidence and not arbitrary or capricious.

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
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

KEYWORD: Guideline J; Guideline E DIGEST: The Judge’s decision explicitly discussed Applicant’s explanations for his false statements. Given the record before him, the Judge’s adverse conclusions are sustainable. Adverse decision affirmed. CASENO: 06-25322.a1 DATE: 07/03/2008 DATE: July 3, 2008 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-25322

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Todd C. Conormon, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On October 18, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline J (Criminal Conduct) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On May 24, 2008, after the hearing, Administrative Judge Mark E. Curry 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 his security clearance application was deliberate; whether the Judge erred by concluding that the security concerns raised under Guidelines J and E had not been mitigated. (1) Applicant contends that he did not deliberately falsify his security clearance application (SF-86) by failing to disclose that he had been court-martialed in 2003 for Burglary and Larceny of Private Property, and was ultimately found guilty of Wrongful Appropriation. In support of this contention, he argues that the Judge gave insufficient weight to his explanations, and gave too much weight to his Answer to the SOR, in which he had stated: “I admit to willfully omitting information regarding court-martial proceedings while a member of the U.S. Army” because “this was an extremely embarrassing time in my military career,” and that he had omitted the information “in an attempt to obtain a security clearance.” Applicant’s argument does not demonstrate that the Judge erred. The Judge’s decision explicitly discussed Applicant’s explanation as to why he failed to disclose the information in question. He 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. The Board does not review a case de novo. 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 by his falsifications had not been mitigated, based upon the favorable record evidence, particularly his lengthy military service, his many years of holding a security clearance without adverse incident, and his favorable employment and character evidence. Again, Applicant has not demonstrated that the Judge erred. Once 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 reasonably explained why the evidence which Applicant had presented in mitigation was insufficient to overcome the government’s other security concerns. 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 J and E 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 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