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ISCR Case 08-02269.a1 — CASE

ISCR Case 08-02269.a1denied

Case Headnote

ISCR Case No. 08-02269.a1

May 8, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

This security clearance application was denied due to concerns under Guideline E (Personal Conduct), Guideline F (Financial Considerations), and Guideline J (Criminal Conduct). The applicant, representing himself, had a criminal conviction for obtaining cash or merchandise by bogus check, alongside multiple financial delinquencies.

A key factor in the denial was the applicant's untruthful responses on his security clearance application regarding his financial status. He failed to follow through on promises to pay off debts and falsified material facts about his financial difficulties. The judge also found the applicant's claims of new evidence unconsiderable under the directive.

Ultimately, the judge determined that the applicant failed to mitigate the security concerns. The appeal board affirmed the denial, citing the applicant's lack of credibility and insufficient evidence to resolve the issues raised.

Conditions Referenced

Disqualifying

AG ¶ 20raisedCriminal Conduct
AG ¶ 19raisedPersonal Conduct
AG ¶ 18raisedFinancial Considerations

Key Rule Quoted

“A clearance may be granted only when ‘clearly consistent with the interests of the national security’”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedJun 10, 2008
Answer filed—Applicant requested a decision on the written record.
Hearing heldJan 27, 2009Administrative Judge Joseph Testan denied the request.
Decision dateMay 8, 2009Appeal board affirmed the adverse decision.

Cite For

Failure to Mitigate Financial Delinquencies Under Guideline F
Falsification of Material Facts Under Guideline E
Criminal Conviction Impact Under Guideline J

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 financial considerations and personal conduct. The applicant argued that the Judge's analysis of mitigating conditions was erroneous. The Board affirmed the Judge's decision, finding no harmful error in the analysis.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoseph Testan — denied the clearance

Decided onthe written record

Guidelines belowGuideline EGuideline FGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge's analysis of the pertinent mitigating conditions was erroneous.

Why the Board ruled this way

The Board found no error in the Judge's analysis and concluded that the decision was sustainable based on the evidence presented.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael Y. Ra’anan — Chair
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 F; Guideline J DIGEST: In view of Applicant’s failure to follow through with earlier promises to pay off certain debts and his falsification of material facts about his financial difficulties, Judge’s conclusion that Applicant failed to mitigate security concerns is sustainable. Adverse decision affirmed. CASENO: 08-02269.a1 DATE: 05/08/2009 DATE: May 8, 2009 In Re: --------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-02269

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 June 10, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of 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 decision on the written record. On January 27, 2009, after considering the record, Administrative Judge Joseph Testan denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s analysis of the pertinent mitigating conditions was erroneous. Finding no error, we affirm. The Judge found that Applicant had numerous delinquent debts, for student loans, automobile loans, consumer purchases, etc. In addition, Applicant was convicted of Obtaining Cash or Merchandise by Bogus Check. The court sentenced him to be fined and to pay restitution. When completing his SCA, Applicant failed to list this conviction as required. Additionally, he answered “no” to questions about financial delinquencies in excess of 180 days and 90 days respectively. These answers were untrue. Applicant has submitted new matters not contained in the record, including copies of cashier’s checks made out to his creditors and recent copies of his credit reports. The Board cannot consider this new evidence. See Directive ¶ E3.1.29. (“No new evidence shall be received or considered by the Appeal Board”). See also ISCR Case No. 08-06518 at 2 (App. Bd. Mar. 3, 2009). The Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the 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)). The Judge’s decision that “it is not clearly consistent with national security to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 8. See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security’”).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, 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