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ISCR Case 07-02163.a1 — CASE

ISCR Case 07-02163.a1denied

Case Headnote

ISCR Case No. 07-02163.a1

Feb 28, 2008· Hon. Jean E. Smallin· appeal

Summary

The applicant, representing herself, was denied a security clearance due to concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The denial was primarily based on the applicant's deliberate failure to disclose an alcohol-related arrest on her security clearance application.

The judge determined that the applicant's explanations for these omissions were insufficient and unconvincing. Ultimately, the judge concluded that the omissions were intentional falsifications, which directly supported the decision to deny the security clearance.

Disqualifying conditions AG ¶ 15 and AG ¶ 16 were raised in this case. The security clearance was therefore DENIED.

Conditions Referenced

Disqualifying

AG ¶ 16raisedCriminal Conduct
AG ¶ 15raisedPersonal Conduct

Key Rule Quoted

“The Judge was not bound, as a matter of law, to accept or reject Applicant’s explanations.”

Procedural Posture

SOR issuedMay 11, 2007
Answer filed—
Hearing heldOct 29, 2007Applicant requested decision on written record.
Decision dateFeb 28, 2008Appeal affirmed the denial.

Cite For

Deliberate Falsification of Information Under Guideline E
Insufficient Explanations for Omissions in Security Clearance Applications
Intentional Omissions Leading to Security Clearance Denial

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 drug involvement and personal conduct. The Applicant contended that the Judge erred in finding her omissions on the application were deliberate. The Board affirmed the Judge's decision, finding no harmful error in the Judge's conclusions regarding the Applicant's intent.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMark W. Harvey — denied the clearance

Decided onthe written record

Guidelines belowGuideline HGuideline E

What the Board reviewed

Erroneous finding of fact — raised by the applicantRejected
Applicant argued that the Judge erred in concluding her falsifications were deliberate.

Why the Board ruled this way

The Board found that the Judge's findings of deliberate falsification were sustainable based on the record evidence and that the Judge was not bound to accept the Applicant's explanations.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewNo 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 H; Guideline E DIGEST: The Judge the opportunity to consider Applicant’s explanations for her failure to disclose the requested information. He was not bound as a matter of law to accept or reject those explanations. Adverse decision affirmed. CASENO: 07-02163.a1 DATE: 02/28/2008 DATE: February 28, 2008 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-02163

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 May 11, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the The Judge found in favor of Applicant under Guideline H and with respect to SOR paragraphs 2.a, 2.b, and 2.e. Those favorable findings are not at issue on appeal. basis for that decision—security concerns raised under Guideline H (Drug Involvement) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested the case be decided on the written record. On October 29, 2007, after considering the record, Administrative Judge Mark W. Harvey 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 Applicant’s falsifications were deliberate. Applicant argues that she did not deliberately falsify her security clearance application, executed on July 18, 2006, by failing to disclose an alcohol-related arrest which had occurred in March 2006. In support of that argument, Applicant contends that she failed to disclose the information because she misunderstood the question. She also argues that she did not deliberately make a false statement to a government investigator in her November 1, 2006 interview, when she explained that she had omitted the charge from her July 8, 2006 application because the final disposition of the charge had occurred at a later date. The charge had in fact been adjudicated and disposed of on June 27, 2006. Applicant’s arguments do not demonstrate that the Judge erred. The Judge had the opportunity to consider Applicant’s explanations as to 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 explanations. The Judge considered Applicant’s explanations 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 findings of deliberate falsification are sustainable. See Directive ¶ E3.1.32.1. His ultimate unfavorable clearance decision under Guideline E is also sustainable.1

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