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ISCR 08-03497.a1: Guideline E security clearance appeal, denied (2010) · CASE

ISCR Case 08-03497.a1denied

Case headnote

ISCR Case No. 08-03497.a1

Mar 19, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant representing himself was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The judge determined that the applicant intentionally falsified his SF 86 by failing to disclose delinquent debts, a disqualifying condition under Guideline E.

While the applicant did experience financial difficulties, these were considered mitigated under Guideline F. However, the intentional falsification of the SF 86 remained a significant issue.

The appeal board upheld the denial, affirming the judge's application of the whole-person concept. The board found no error in the judge's decision-making process, concluding that the applicant did not demonstrate any basis to overturn the denial.

Conditions referenced

Disqualifying

E2.A5.1.2raisedPersonal Conduct
F2.A1.1raisedFinancial Considerations

Mitigating

F3.A1appliedFinancial ConsiderationsThe judge found that the applicant's financial difficulties had been mitigated.

Key rule quoted

“There is no right to any additional instruction or description from DOHA regarding the whole-person concept.”

Procedural posture

SOR issuedAug 19, 2009
Answer filed—Applicant requested a decision on the written record.
Hearing held—Decision made by Administrative Judge Edward W. Loughran.
Decision dateMar 19, 2010Appeal board affirmed the decision.

Cite for

Affirmation of the Whole-person Concept in Security Clearance Decisions
Denial Based on Intentional Falsification of Application
Mitigation of Financial Difficulties Under Guideline F

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 was filed by the applicant after the Administrative Judge denied his request for a security clearance based on financial considerations and personal conduct. The applicant argued that the Judge's reliance on the whole-person concept was improper as it had not been previously mentioned. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant claims that the Judge’s decision relied on the whole-person concept which was not previously mentioned.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the applicant failed to demonstrate any harmful error in the Judge's application of the whole-person concept.

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)
Jeffrey D. Billett
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 F; Guideline E DIGEST: Applicant claims that the Judge’s decision relied on a the whole-person concept and that was the first time the concept was mentioned in the process. Applicant received the Directive which discusses the whole-person. Record evidence indicates that Applicant understood and relied on the whole-person concept in the proceedings below. Adverse decision affirmed. CASENO: 08-03497.a1 DATE: 03/19/2010 DATE: March 19, 2010 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-03497

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 August 19, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations) and Guideline E (Personal 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 January 21, 2009, after the close of the record, Administrative Judge Edward W. Loughran denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the issue of whether the Judge’s decision is arbitrary, capricious, or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable decision. The Judge found that Applicant had financial difficulties but that those problems had been mitigated under Guideline F. Regarding Guideline E, the Judge found that Applicant intentionally falsified his SF 86 when he failed to divulge his delinquent debts. The Judge concluded that this deliberate falsehood was not mitigated. Applicant argues that at no time during the entire process of application for a security clearance was the “whole-person” concept ever mentioned or discussed. Applicant claims that if the whole-person concept was used by the Judge “to reach and base his decision” regarding his personal conduct, then he has the right to appeal the decision. Applicant also complains that DOHA never sought on its own, any favorable information regarding his character and integrity. Applicant fails to demonstrate error on the part of the Judge. Prior to the submission of the case file to the Judge, Applicant received instructions regarding the case. He also received a copy of Department of Defense Directive 5220.6. Paragraph 2(a) gives a full and detailed description of the whole-person concept. Applicant was therefore on notice as to the whole-person concept. There is no right to any additional instruction or description from DOHA regarding the whole-person concept. There is record evidence which suggests Applicant understood and relied upon the whole-person concept, namely, his response to the SOR in which he discussed his service history and his past protection of sensitive information. He again submitted such material in response to the file of relevant material submitted by the government. Moreover, Applicant has failed to articulate how he was prejudiced by the lack of any further description by DOHA of the whole-person concept. Regarding the submission of favorable evidence, DOHA has no duty to present such evidence. Rather, through the receipt of Department of Defense Directive 5220.6, Applicant was informed prior to the submission of the case file to the Judge of the requirement to submit evidence to rebut, explain, extenuate, or mitigate facts admitted by Applicant or proven by Department Counsel. Directive ¶E3.1.15. As indicated earlier in this paragraph, Applicant did, in fact, avail himself of the opportunity to submit matters in his own behalf for the Judge’s consideration. Applicant fails to articulate how he was denied due process or how any additional initiatives on the part of DOHA would have prevented any supposed denial. Applicant’s appeal submission contains documents of an evidentiary nature that were not made part of the record below. The Board cannot receive or consider new evidence submitted on appeal. Directive, ¶E3.1.29. Applicant has failed to establish error below. Accordingly, the Judge’s unfavorable security clearance decision 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 Chairperson, Appeal Board Signed: Jeffery D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board