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ISCR Case 07-10749.a1 — CASE

ISCR Case 07-10749.a1denied

Case Headnote

ISCR Case No. 07-10749.a1

Oct 10, 2008· Hon. Michael D. Hipple· appeal

Summary

An applicant, representing himself, was denied a security clearance primarily due to concerns under Guideline E (Personal Conduct), despite a favorable finding under Guideline F (Financial Considerations). The denial stemmed from the applicant's deliberate falsification of his security clearance application.

Specifically, the applicant failed to disclose significant debts and a civil action. The judge found the applicant's explanation for these omissions to be insufficient and not credible, concluding that the applicant deliberately falsified the application. This raised disqualifying conditions under Guideline E (E2).

While mitigating conditions were applied under Guideline F (F3), these were not enough to outweigh the serious security concerns identified under Guideline E. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

E2raisedDeliberate Falsification of Information

Mitigating

F3appliedMitigating Evidence ConsideredThe judge found in favor of the applicant under Guideline F but determined it did not outweigh the disqualifying conduct.

Key Rule Quoted

“The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision.”

Procedural Posture

SOR issuedMar 6, 2008
Answer filed—
Hearing heldJul 30, 2008
Decision dateOct 10, 2008

Cite For

Deliberate Falsification of Security Clearance Applications Under Guideline E
Weight of Mitigating Evidence in Security Clearance Decisions
Whole-person Analysis in Security Clearance Evaluations

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 deliberate falsification of the application. The Applicant argued that the Judge erred in concluding he had falsified information and that the adverse decision was arbitrary. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMichael H. Leonard — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge did not give adequate weight to the mitigating evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's conclusion that Applicant deliberately falsified his security clearance application was sustainable and that the Judge properly weighed the evidence presented, leading to a reasonable decision.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael D. Hipple
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 F; Guideline E DIGEST: Given the totality of the record evidence the Judge’s conclusion that Applicant deliberately falsified his security clearance application is sustainable. Adverse decision affirmed. CASENO: 07-10749.a1 DATE: 10/10/2008 DATE: October 10, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-10749

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 6, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) The Judge’s favorable finding under Guideline F is not at issue on appeal. and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On July 30, 2008, after the hearing, Administrative Judge Michael H. Leonard 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 had deliberately falsified his security clearance application; and whether the Judge’s adverse clearance decision under Guideline E is arbitrary, capricious or contrary to law.1

(1) Applicant argues that he did not deliberately falsify three different questions on his security clearance application by failing to disclose the fact that he had six debts totaling approximately $38,000 that were currently more than 90 or 180 days delinquent, and that he had been a party to a civil action for damages in excess of $15,000. In support of that argument, he essentially asserts that the Judge was required to accept, as a matter of law, his explanation that he believed he did not need to disclose that information in response to the questions. Applicant’s argument in this regard does not demonstrate that the Judge erred. A review of the Judge’s decision indicates that he 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 plain language of the questions at issue and the totality of the record evidence, the Judge’s conclusion that Applicant had deliberately falsified his security clearance application is sustainable. See, e.g., ISCR Case No. 07-02163 at 2 (App. Bd. Feb. 28, 2008); ISCR Case No. 06-16159 at 2 (App. Bd. Jan. 10, 2008). (2) Applicant also contends that the Judge’s adverse decision should be reversed because the Judge did not give adequate weight to the mitigating evidence, including his outstanding work performance and his favorable community ties. Again, Applicant’s argument does not demonstrate that the Judge erred. 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. 06-10320 at 2 (App. Bd. Nov. 7, 2007). 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. See, e.g., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). A review of the decision indicates that 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. He found in favor of Applicant under Guideline F. However, he 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. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for his decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). An applicant with good or exemplary job performance may engage in conduct that has negative security implications. The Guidelines set forth in the Directive address a variety of examples of conduct and circumstances which are a security concern to the government and require a whole-person analysis to determine an applicant’s security eligibility. A whole-person analysis is by its very nature not confined to the workplace. See, e.g. ISCR Case No. 03-19006 at 6 (App. Bd. Oct. 17, 2005). Therefore, the Judge’s ultimate unfavorable security clearance decision under Guideline E is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple 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