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ISCR 06-26061.a1: Guideline E security clearance appeal, denied (2008) · CASE

ISCR Case 06-26061.a1denied

Case headnote

ISCR Case No. 06-26061.a1

Mar 17, 2008· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance due to deliberate falsification of his application. The denial was based on Guideline E (Personal Conduct) and Guideline J (Criminal Conduct), specifically citing disqualifying conditions J1 and E2.

The applicant intentionally failed to disclose an arrest on his security clearance application. The judge determined that this omission was deliberate and that the applicant's explanation for it was insufficient.

Crucially, the applicant did not provide credible evidence in mitigation to address the government's security concerns. Consequently, the judge found the government's concerns valid and upheld the denial, concluding that the decision was not arbitrary or capricious.

Conditions referenced

Disqualifying

J1raisedCriminal Conduct
E2raisedDeliberate Falsification of Information

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 issuedJun 6, 2007
Answer filed—Applicant requested decision on written record.
Hearing heldDec 5, 2007Decision made by Administrative Judge Joseph Testan.
Decision dateMar 17, 2008Appeal board affirmed the decision.

Cite for

Deliberate Falsification of Information Under Guideline E
Failure to Provide Credible Evidence in Mitigation Under Guideline J
Burden of Proof Shifts to Applicant 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 under Guideline E and Guideline J. The applicant argued that he did not deliberately falsify his application by failing to disclose an arrest. The Board affirmed the Judge's decision, finding no error in the Judge's conclusions regarding the applicant's credibility and the evidence presented.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoseph Testan denied the clearance

Decided onthe written record

Guidelines belowGuideline EGuideline J

What the Board reviewed

Erroneous finding of fact, raised by the applicantRejected
Applicant contended that the Judge erred in concluding that his falsification of the security clearance application was deliberate.

Why the Board ruled this way

The Board found that the Judge's conclusion regarding the applicant's deliberate falsification was supported by substantial evidence and that the Judge's decision was not arbitrary, capricious, or contrary to law.

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
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 E; Guideline J DIGEST: 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. Given the record in this case the Judge’s adverse decision is affirmable. Adverse decision affirmed. CASENO: 06-26061.a1 DATE: 03/17/2008 DATE: March 17, 2008 In Re: -------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-26061

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se In evaluating the Guideline J allegations, the Judge noted: “Applicant may very well have been able to overcome the Government’s prima facie case had he offered credible evidence in mitigation. However, applicant offered no evidence in mitigation, and without such evidence, there is no basis upon which to conclude he has overcome the Government’s security concerns . . .” Decision at 3. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On June 6, 2007, 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 that the case be decided on the written record. On December 5, 2007, after considering the record, Administrative Judge Joseph Testan 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 issue on appeal: whether the Judge erred in concluding that Applicant’s falsification of his security clearance application was deliberate. Applicant contends that he did not deliberately falsify his security clearance application by failing to disclose an arrest on charges of Driving Under the Influence of Alcohol and Driving While Having a Measurable Blood Alcohol of .08% or More by Weight. In support of this contention, he argues that he thought he was only required to disclose convictions. 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. Applicant elected to have his case decided on the written administrative record and then did not respond to the government’s file of relevant material (FORM). As a result, the Judge did not have an opportunity to question him about the omission and evaluate his credibility in the context of a hearing. A review of the Judge’s decision indicates that the Judge considered 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. Given the limited record that was before him, the Judge’s finding of deliberate falsification is sustainable, and his ultimate unfavorable clearance decision under Guidelines E and J not arbitrary, capricious nor contrary to law. See Directive ¶ E3.1.32.1; ISCR Case No. 04-03849 at 2-3 (App. Bd. Jan. 26, 2006).

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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board