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ISCR Case 10-03898.a1 — CASE

ISCR Case 10-03898.a1denied

Case Headnote

ISCR Case No. 10-03898.a1

Jul 3, 2014· Hon. Jeffrey D. Billett· appeal

Summary

A defense contractor employee was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The applicant's credibility was significantly undermined by deliberate omissions and false statements made on his security clearance applications.

Specifically, the applicant failed to file both state and federal tax returns for multiple years, which raised substantial security concerns. Furthermore, the judge found the applicant's explanations for these omissions and false statements to be less than credible.

These issues, including a history of providing deceptive answers, led to the affirmation of the adverse decision. The denial was based on disqualifying conditions AG ¶ 16 and AG ¶ 19, reflecting the applicant's personal conduct and financial considerations.

Conditions Referenced

Disqualifying

AG ¶ 16raisedPersonal Conduct
AG ¶ 19raisedFinancial Considerations

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 issuedNov 8, 2013
Answer filed—
Hearing heldApr 14, 2014
Decision dateJul 3, 2014

Cite For

Deliberate Omissions and False Statements in Security Clearance Applications Under Guideline E
Failure to File Tax Returns as a Significant Concern Under Guideline F
Importance of Credibility 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 was from a denial of a security clearance based on concerns under Guideline E and Guideline F. The applicant argued that the Judge's findings were erroneous and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the findings or the decision process.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJuan J. Rivera — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline F

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge erred in some of his findings of fact.
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.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the Judge's adverse decision was not arbitrary or capricious. The Board deferred to the Judge's credibility determinations and found no harmful error in the Judge's findings.

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 Ra’anan — Chair
Jeffrey D. Billett
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 DIGEST: The number of false answers contained in two different SCAs, Applicant’s experience with the security clearance process, his admission that he answered as he did in order to complete his SCAs quickly, and the Judge’s evaluation of Applicant’s credibility support the Judge’s findings that Applicant’s omissions were deliberate. Adverse decision affirmed. CASENO: 10-03898.a1 DATE: 07/03/2014 DATE: July 3, 2014 In Re: --------------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-03898

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On November 8, 2013, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline E (Personal Conduct) and Guideline F (Financial

FOOTNOTES

1 The record shows that Applicant was punished under Article 15, UCMJ, for one instance of sleeping on duty and one instance of failure to obey orders. Additionally, his commander vacated a suspended Article 15 punishment for another instance of failure to obey orders. Government Exhibit 6, Record of Nonjudicial Punishment Proceedings. Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On April 14, 2014, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Juan J. Rivera 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 the Judge’s findings of fact contained errors and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant is an employee of a Defense contractor. He attended college for one year and did not receive a degree. He served in the U.S. military from 1999 until 2002. He submitted his first security clearance application (SCA) while in basic training, receiving his clearance soon thereafter. He has held a clearance since then. While in the military, Applicant received discipline under Article 15, UCMJ, three times.1 The offenses were one instance of sleeping on duty and two of failure to obey orders. After this, Applicant’s command discharged him for misconduct, his service characterized as General Under Honorable Conditions. He was required to pay back a $6,000 enlistment bonus. After leaving the military, Applicant worked for a Government contractor (Employer A). He assisted in the review of security clearance applications (SCA), produced final reports of investigation, and advised investigators. He left this job and, after a period of unemployment, took one with another Government contractor (Employer B). In this job he reviewed and updated personnel security paperwork to ensure that all required data was provided. He also obtained information from applicants and updated databases. Employer B terminated Applicant’s employment because of allegations of time sheet falsifications. After this, Applicant worked for yet another Government Contractor, (Employer C). His employment was conditioned upon his eligibility for a security clearance. Upon a determination that he was not eligible for a clearance, and after concluding that there was no other position with the company that Applicant could fill, C terminated his employment. Applicant then worked for another contractor (Employer D) before taking his current job. His duties for D entailed reviewing SCAs and other security related functions. In his current job Applicant performs security tasks, including reviewing and processing SCAs. Applicant submitted SCAs in 2006 and 2009. In 2006, he omitted the nonjudicial punishment actions, although the information was explicitly required to be disclosed. He also failed to disclose several delinquent debts. Applicant omitted a substantial amount of information from his 2009 SCA. For example, he stated that both B and C had laid him off, rather than having terminated his employment. He did not disclose that he had been investigated for a clearance when working for C and found ineligible. He did not disclose his failure to file state and Federal tax returns for tax years 2006 through 2008, nor did he disclose a judgment against him, several delinquent debts, and a delinquency in Federal tax payments. At the hearing, Applicant admitted having failed to file his 2009 and 2010 tax returns and having failed to pay the taxes owed. When asked why he failed to file his returns, he stated that someone advised him not to do so and following that advice was a mistake. Moreover, when interviewed in 2009, Applicant stated that B had laid him off rather than having terminated him for time card fraud. Applicant acknowledged that many of his answers to the SCA were wrong. He stated that he had answered “no” rather than “yes” to the questions because he wanted to complete the SCA as soon as possible. He did not want to take time to answer in detail about his various issues and intended to address them during his interview. Applicant enjoys a good reputation for trustworthiness, reliability, and integrity. He submitted numerous certificates of training, most of which concerned training in 2010. The Judge’s Analysis The Judge found that Applicant’s various false statements, his instances of military punishment, and his tax delinquencies raised Guideline E concerns. Under Guideline F, the SOR alleged only Applicant’s failure to file state and Federal tax returns. The Judge found that these failures raised concerns as well. The Judge stated that, after considering the evidence as a whole and examining Applicant’s demeanor at the hearing, he found that none of the Guideline E mitigating conditions applied. Applicant made little or no effort to correct his falsifications and that even at the hearing he minimized his behavior and provided explanations that were less than credible. The Judge also concluded that Applicant had not mitigated the Guideline F concerns. He noted, for example, evidence that in 2009 Applicant was confronted with his tax deficiencies yet he did not file returns for 2009 or 2010. The Judge discounted Applicant’s testimony that he relied on (non-professional) advice in failing to file. He also stated that, while Applicant’s recent tax payments are a step in the right direction, they are not sufficient totally to mitigate his security concerns. Discussion Applicant contends that the Judge erred in some of his findings of fact. He denied that he deliberately provided deceptive answers in his SCAs and interview. He also challenged other factual findings. We examine a Judge’s findings to see if they are supported by substantial record evidence. Substantial evidence is “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. See also ISCR Case No. 11-13948 at 3 (App. Bd. February 26, 2014). In evaluating an applicant’s intent, we consider his or her false statements in light of the record as a whole. See, e.g., ISCR Case No. 11-12172 at 3 (App. Bd. Jan. 9, 2014). In this case, the number of false answers contained in two different SCAs, Applicant’s experience with the security clearance process, his admission that he answered as he did in order to complete his SCAs quickly, and the Judge’s evaluation of Applicant’s credibility support the Judge’s findings that Applicant’s omissions were deliberate and not the result of honest mistake or some other innocent reason. We defer to a Judge’s credibility determination. Directive ¶ E3.1.32.1. Applicant also challenged the Judge’s finding that his security training had occurred in 2010. Applicant’s argument is consistent with the record, in that the bulk of his training certificates are dated 2013. However, to the extent that this is an error, it did not likely exert an effect on the outcome of the case. Considering Applicant’s arguments as a whole, we conclude that he has cited to no harmful error in the Judge’s findings. The Judge’s material findings of security concern are supported by substantial evidence or constitute reasonable inferences or conclusions that could be drawn from the evidence. See, e.g., ISCR Case No. 11-02311 at 3 (App. Bd. Nov. 26, 2012). Applicant cites to his having held a clearance for many years without incident or concern, as well as to other evidence that he believes supports his case for a clearance. However, a Judge is presumed to have considered all of the evidence in the record, and Applicant’s arguments are not sufficient to rebut that presumption. See, e.g., ISCR Case No. 11-06649 at 3 (App. Bd. Feb. 21, 2014). Applicant challenges the Judge’s treatment of the mitigating conditions. His arguments amount merely to a disagreement with the Judge’s weighing of the evidence. Given the Judge’s findings about Applicant’s failure to file or pay his taxes, the extent of his false statements, and his lack of credibility at the hearing, the Judge’s adverse decision is consistent with the weight of the evidence before him. The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The 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). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Order The Decision is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board