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ISCR Case 08-11345.a1 — CASE

ISCR Case 08-11345.a1denied

Case Headnote

ISCR Case No. 08-11345.a1

Oct 6, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

A defense contractor engineer was denied a security clearance, with the decision primarily based on concerns under Guideline E (Personal Conduct). The applicant provided false statements on his security clearance application concerning financial delinquencies.

Specifically, the judge determined that the applicant's omissions regarding these financial issues were deliberate and not credible, despite the applicant's assertions of good faith mistakes. This led to the application of disqualifying condition E2.A5.1.2.

While the applicant was found favorably under Guideline F (Financial Considerations), with mitigating condition F2.A1.3 applied, the deliberate false statements on the application under Guideline E ultimately resulted in the denial of the security clearance.

Conditions Referenced

Disqualifying

E2.A5.1.2appliedDeliberate Omission of Information

Mitigating

F2.A1.3raisedGood Reputation and Job PerformanceThe applicant's good reputation and job performance were noted but did not mitigate the security concerns.

Key Rule Quoted

“The general standard is that 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 issuedAug 24, 2009
Answer filed—
Hearing heldJul 20, 2010
Decision dateOct 6, 2010

Cite For

Deliberate Omission of Information Under Guideline E
Credibility of Applicant's Claims Regarding Financial Issues
Impact of False Statements on Security Clearance Decisions

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 an applicant seeking a security clearance after being denied due to concerns under Guideline F (Financial Considerations) and Guideline E (Personal Conduct). The applicant raised several issues regarding the Judge's findings of fact and the weighing of evidence. The Board affirmed the Judge's decision, finding that any errors were harmless and did not affect the outcome.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRoger C. Wesley — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge did not properly weigh the record evidence, relying too much on Applicant’s years of unemployment.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge’s adverse decision was arbitrary, capricious, or contrary to law.
Erroneous finding of fact — raised by the applicantError found, but harmless
Applicant claimed that the Judge erred in finding that the omissions on the SCA were deliberate.
Erroneous finding of fact — raised by the applicantError found, but harmless
Applicant claimed that the Judge misidentified which of his sons had been a co-lessee with him on the repossessed truck.
Erroneous finding of fact — raised by the applicantError found, but harmless
Applicant claimed that the Judge erred by finding that Applicant had received a degree from college.
Erroneous finding of fact — raised by the applicantError found, but harmless
Applicant claimed that the Judge erred by finding that Applicant had withdrawn $50,000 from his 401k plan.
Erroneous finding of fact — raised by the applicantError found, but harmless
Applicant claimed that the Judge misidentified his daughters as having come from his current marriage.
Erroneous finding of fact — raised by the applicantError found, but harmless
Applicant claimed that the Judge understated the number of years Applicant had worked for the public utility company.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that errors in the Judge’s findings of fact did not likely affect the outcome of the case and were therefore harmless. The Judge's material findings of security concern were sustainable, and the adverse decision was affirmed.

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

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 F; Guideline E DIGEST: Errors in the Judge’s findings of fact did not likely affect the outcome of the case. Therefore, they are harmless. Applicant failed to rebut the presumption that the Judge considered all of the record evidence. Adverse decision affirmed. CASE NO: 08-11345.a1 DATE: 10/06/2010 DATE: October 6, 2010 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-11345

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 24, 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 a hearing. On July 20, 2010, after the hearing, Administrative Judge Roger C. Wesley denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether certain of the Judge’s findings of fact were in error; whether the Judge failed to consider all of the record evidence; whether the Judge mis-weighed the record evidence; and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following discussion, we affirm the decision of the Judge. The Judge found in Applicant’s favor as to all of the allegations under Guideline F. However, he found against him for certain of the allegations under Guideline E. He made the following pertinent findings: Applicant is an engineer specialist working for a Defense contractor. From 1999 until 2004 Applicant worked for a public utility company. He was laid off from work in 2004 and was out of work for a year. He returned to work for the company in 2005 and in 2007 began his current employment. In completing his security clearance application (SCA), Applicant answered no to four questions: (1) whether Applicant had ever had any property repossessed; (2) whether Applicant had ever had a lien placed against his property due to failure to pay taxes or other debts; (3) whether, within the previous seven years, Applicant had been over 180 days delinquent on any debts; and (4) whether Applicant were currently over 90 days delinquent on any debts. These negative answers were untrue. In fact, Applicant and his son had had a truck repossessed due to non-payment; the IRS had taken a lien against Applicant’s property due to non- payment of tax; and this same IRS debt had been delinquent over 180 days and over 90 days for purposes of the SCA questions at issue. The Judge further found that Applicant’s answers to these four questions were deliberate. He stated that the questions themselves were clear and that, under the circumstances of the case, Applicant’s claims of good-faith mistake and/or confusion were not credible. Applicant enjoys a good reputation for his trustworthiness, honesty, dependability, and for the quality of his job performance. He received excellent evaluations by his employer for the 2009 rating period. Factual Sufficiency Applicant contends that the Judge erred in some of his findings. He claims, for example, that the Judge erred in his finding that the omissions on the SCA were deliberate. He claims that the Judge erred by mis-identifying which of his sons had been a co-lessee with him on the repossessed truck; by finding that Applicant had received a degree from college; and by finding that Applicant had withdrawn $50,000 from his 401kplan. Applicant also contends that the Judge committed other factual errors, including mis-identifying his daughters as having come from his current marriage and under-stating the number of years Applicant had worked for the public utility company. We review the Judge’s findings of facts to determine if they are supported by substantial evidence–“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” Directive ¶ E3.1.32.1. We note the Judge’s finding about the clarity of the questions involved. We also note record evidence that Applicant attended a university for nearly two years, thereby demonstrating an educational level that would render less likely claims not to have understood the questions. In light of the record, the

FOOTNOTES

1 The Judge’s finding about the length of time Applicant worked for the utility company is supported by Government Exhibit (GE) 1, Applicant’s SCA, at 13. The finding about Applicant’s withdrawal of $50,000 from his 401kis supported by Applicant’s testimony at Tr. 51. The Judge’s finding about Applicant’s having received a college degree is error. GE 1 at 10. The finding concerning the son with whom Applicant co-leased the truck appears to be error. Tr. at 86. The record evidence is not clear concerning the finding about Applicant’s daughters. Judge’s findings about the deliberate nature of Applicant’s omissions are sustainable. Regarding the remaining challenged findings, even if they contain errors, they are not such as would have affected the outcome of the case.1 See ISCR Case No. 08-07528 at 2 (App. Bd. Dec. 29, 2009). Therefore, the are harmless. The Judge’s material findings of security concern are sustainable. Remaining Issues Applicant contends that the Judge did not consider all of the evidence, for example his excellent work performance and his good financial record prior to his lay-off from work. However, a Judge is presumed to have considered all of the record evidence. See, e.g., ISCR Case No. 08- 05637 at 3 (App. Bd. Sep. 9, 2010). In this case, the Judge found in Applicant’s favor regarding the Guideline F concerns. His adverse findings pertain to the false answers on Applicant’s SCA, alleged under Guideline E. Under the facts of this case, evidence of prior good financial management is not relevant to security concerns arising from Applicant’s false answers. Additionally, the Judge made specific findings about Applicant’s job performance and good reputation. Moreover, the record supports a conclusion that the Judge complied with the requirements of Directive, Enclosure 2 ¶ 2(a) in arriving at his decision. Applicant’s presentation on appeal is not sufficient to rebut the presumption that the Judge considered all of the record evidence. Applicant contends that the Judge did not properly weigh the record evidence, relying too much on Applicant’s years of unemployment. Again, however, Applicant’s appeal brief is not sufficient to demonstrate that the Judge weighed the evidence in an arbitrary or capricious manner. See, e.g., ISCR Case No. 06-21819 at 2 (App. Bd. Aug. 13, 2009). After reviewing the record, we conclude 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 adverse decision is sustainable on this record. “The general standard is that 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). Order The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, 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