Loading case…

ISCR 10-06089: Guideline E security clearance appeal, denied (2013) · CASE

ISCR Case 10-06089denied

Case headnote

ISCR Case No. 10-06089

Sep 11, 2013· Hon. Michael Y. Ra'anan· appeal

Summary

A contractor employee was denied a security clearance under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct) due to submitting false claims for flight training. The judge determined that the applicant's actions constituted misconduct, citing credible witness testimonies and corroborating evidence.

The applicant's denials of wrongdoing were found to be not credible, especially when weighed against independent evidence presented. This conduct raised significant security concerns, which the applicant failed to mitigate.

Consequently, the security clearance was denied, as the judge concluded that the applicant had not adequately addressed the concerns related to personal and criminal conduct.

Conditions referenced

Disqualifying

AG ¶ 15raisedCriminal Conduct
AG ¶ 14raisedPersonal Conduct

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 issued—
Answer filedJul 6, 2012
Hearing heldJun 25, 2013
Decision dateSep 11, 2013

Cite for

Credibility Determinations in Security Clearance Cases
Whole-person Analysis Under Security Clearance Guidelines
Importance of Corroborating Evidence in Misconduct Cases

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 concerns under Guideline E and Guideline J. The applicant challenged the Judge's findings, credibility determinations, and application of mitigating conditions. The Board affirmed the decision, finding no harmful errors in the Judge's analysis.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMartin H. Mogul denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant argued that the Judge erred in finding that he had deliberately submitted false vouchers for flight training.
Credibility determination, raised by the applicantRejected
Applicant challenged the Judge's credibility determination.
Mitigation wrongly applied / not applied, raised by the applicantRejected
Applicant contended that the Judge failed to properly apply the mitigating conditions.
Whole-person analysis, raised by the applicantRejected
Applicant argued that the whole-person analysis was erroneous.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant claimed that the overall decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board affirmed the Judge's decision, finding that the Judge's findings of fact were supported by substantial evidence and that the credibility determinations were reasonable. The Judge's analysis of the mitigating conditions and whole-person factors, while somewhat cursory, was consistent with the record.

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 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

APPEARANCES

Applicant raised the following issues on appeal: whether the Judge’s findings of fact contained errors; whether the Judge’s credibility determination was erroneous; whether the Judge failed properly to apply the mitigating conditions; whether the whole-person analysis was erroneous; and whether the overall decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact The Judge’s findings consisted in large measure of detailed summaries of witnesses’ testimonies, with his resolution of conflicts among those witnesses being reserved for the Analysis. In essence, the Judge made the following findings: Applicant worked for a contractor who permitted those of his employees who were pilots to spend five hours a month flying in order to maintain their skills. Applicant’s employer would reimburse the employee for costs associated with this proficiency training. The vice president of Applicant’s employer discovered an apparent discrepancy in documentation concerning Applicant’s training flights. After visiting the aero club where this training purportedly occurred, examining documentation, and speaking with persons at the club, the employer discovered that Applicant had been submitting claims and receiving compensation for flights that he had never actually undertaken. Among other things, they discovered that Applicant had repeatedly used a blank copy of the same voucher rather than a separate voucher for each claim. The employer fired Applicant due to this misconduct. The Judge’s Analysis In the Analysis, the Judge explained why he found the inculpatory evidence provided by Applicant’s employer and the vice president of the company to be more credible than Applicant’s denials of wrongdoing. He stated that he found the testimony of these two persons to be credible because they seemed surprised and disappointed by Applicant’s misconduct; they had devoted a substantial amount of time to examining the records of the aero club; and Government auditing practices would not have permitted Applicant to have submitted multiple receipts from a single voucher, as Applicant testified he had been authorized to do. The Judge also explained why he did not find credible Applicant’s evidence, principally a flight log and a chart derived therefrom, that purported to support his denial of wrongdoing. The Judge stated that these documents were written by Applicant and were not corroborated by independent evidence. He concluded that Applicant’s conduct raised security concerns under both Guidelines alleged in the SOR and that none of the mitigating conditions applied. He concluded that Applicant had not mitigated the concerns in his case.

DISCUSSION

Applicant argues that the Judge erred in finding that he had deliberately submitted false vouchers for flight training. In presenting his appeal he challenges the Judge’s credibility determination. He contends that his own evidence was more worthy of belief than that of the Department Counsel. We examine a Judge’s findings of fact to see if they are supported by substantial evidence, that 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 ¶ E3.2.32.1. See ISCR Case No. 11-00970 at 2 (App. Bd. Feb. 28, 2012). We are required to defer to a Judge’s credibility determination. Directive ¶ E3.1.32.1. See ISCR Case No. 09-00266 at 4 (App. Bd. Jan. 26, 2012). However, this deference does not immunize a credibility determination from review or preclude us from concluding that a challenged credibility determination cannot be sustained, in light of the totality of the record evidence. See, e.g., ISCR Case No. 07-17801 at 6 (App. Bd. Dec. 5, 2012). We have considered the Judge’s essential findings in light of the record. The two witnesses for the Government provided detailed, mutually corroborating testimonies that were not undermined on cross-examination.2 These testimonies were corroborated by independent documentary evidence. By contrast we note that Applicant’s case rested in large measure on his own uncorroborated denials of misconduct. Moreover, his testimony at the hearing was contradicted by evidence that he had admitted the wrongdoing to a fellow employee.3 The evidence provides no reason to disturb the Judge’s credibility determination. We conclude that the Judge’s material findings of security concern are based upon substantial record evidence. Applicant contends that the Judge should have extended more weight to the flight log. However, a disagreement with the Judge’s weighing of the evidence or an ability to argue for an alternative interpretation of the evidence is not sufficient to demonstrate that the Judge’s treatment of the evidence was unreasonable. See, e.g., ISCR Case No. 05-02471 at 2 (App. Bd. Apr. 11, 2007). The Judge provided a reasonable explanation as to why he discounted the flight log, for example that it was partly illegible and that it was not corroborated by other evidence. Applicant has not demonstrated that the Judge mis-weighed this evidence. The Judge’s discussion of the mitigating conditions and whole-person factors was somewhat cursory. However, given his detailed explanation of why he found the allegations to have been substantiated and his supportable credibility determination, the Judge’s conclusion that none of the mitigating conditions applied was consistent with the record that was before him. The Judge’s whole-person analysis complied with Directive, Enclosure 2 ¶ 2(a), in that he considered the totality of Applicant’s conduct in reaching his decision. See, e.g., ISCR Case No. 10-03598 at 3 (App. Bd. Oct. 10, 2012). 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 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

FOOTNOTES

1 The SOR is undated. Applicant’s reply to the SOR is dated July 6, 2012. KEYWORD: Guideline E; Guideline J DIGEST: The Appeal Board is required to defer to a Judge’s credibility determination. We examine a Judge’s findings of fact to see if they are supported by substantial record evidence. The Judge’s whole-person analysis complied with the Directive in that it considered the totality of Applicant’s conduct. Adverse decision affirmed. CASE NO: 10-06089 DATE: 09/11/2013 DATE: September 11, 2013 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-06089 APPEAL BOARD DECISION APPEARANCES FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Amy C. Broderick, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. DoD issued a statement of reasons (SOR)1 advising Applicant of the basis for that decision–security concerns raised under 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 hearing. On June 25, 2013, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Martin H. Mogul denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30.

2 “Normally, we don’t get Invoices with the same number, and that was the problem we had when we went to the Aero Club. You know, all these Invoices were just the same number . . . And, you know, we talked to the Aero Club Manager . . . The guy just basically threw in the towel and said – look, [Applicant] hasn’t been here for months. I haven’t [seen] him. So, the one airplane that he is actually claiming he was flying had been down for maintenance for some time. So, he said he noticed that airplane hasn’t been flying for a long [time].” Tr. at 51-52.

3 Government Exhibit (GE) 3, Personnel Documents, includes a transcription of text messages Applicant sent to the employee. Applicant stated that he had “[s]ubmitted . . . re-embursement (sic) even when didn’t fly.” Applicant acknowledged that he had “no leg to stand on.” GE 3 at 8-9.