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ISCR 10-07893.a1: Guideline B security clearance appeal, denied (2011) · CASE

ISCR Case 10-07893.a1denied

Case headnote

ISCR Case No. 10-07893.a1

Sep 7, 2011· Hon. Jean E. Smallin· appeal

Summary

A senior program coordinator for a government contractor was denied a security clearance due to concerns under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The denial stemmed from two key issues identified during the application process.

First, the applicant made two false statements concerning her foreign passport. These misrepresentations were a significant factor under Guideline E, which addresses personal conduct and the importance of candor in the security clearance process.

Second, the applicant's family ties in Thailand raised substantial security concerns under Guideline B, pertaining to foreign influence. The appeal board affirmed the denial, underscoring the critical nature of national security and the applicant's inability to mitigate the identified concerns related to both her foreign connections and her personal conduct.

Conditions referenced

Disqualifying

AG BraisedForeign Influence
AG EraisedPersonal 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 issuedNov 26, 2010
Answer filed—Applicant requested a decision on the written record.
Hearing heldJun 17, 2011
Decision dateSep 7, 2011

Cite for

Affirmation of Adverse Decision Due to False Statements Under Guideline E
Significance of Foreign Contacts Under Guideline B
Importance of National Security in Clearance Determinations

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 foreign influence and personal conduct concerns. The applicant argued that the Judge erred in finding her statements deliberately false and in applying mitigating conditions. The Board affirmed the Judge's decision, finding no harmful error in the conclusions reached.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoan Caton Anthony denied the clearance

Decided onthe written record

Guidelines belowGuideline BGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant claimed the Judge erred in concluding that her statements were deliberately false.
Mitigation wrongly applied / not applied, raised by the applicantRejected
Applicant argued that the Judge erred in her application of the pertinent mitigating conditions.

Why the Board ruled this way

The Board found that the Judge's conclusions regarding the applicant's foreign contacts and false statements were supported by substantial evidence and articulated a rational connection between the facts and the decision made.

Standard of review applied

Substantial-evidence reviewNo de-novo re-decisionNo new evidence on appealArbitrary-and-capricious review

Appeal Board panel

Jean E. Smallin
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 B; Guideline E DIGEST: Applicant has not demonstrated that Judge erred in concluding that Applicant’s two false statements and her foreign contacts were not mitigated.. Adverse decision affirmed. CASENO: 10-07893.a1 DATE: 09/07/2011 DATE: September 7, 2011 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-07893

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 November 26, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On June 17, 2011, after considering the record, Administrative Judge Joan Caton Anthony 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 erred in concluding that Applicant’s answer to the security clearance application (SCA) and subsequent interview were deliberately false and whether the Judge erred in her application of the pertinent mitigating conditions. Consistent with the following, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: Applicant is a senior program coordinator and liaison for a Government contractor. This is her first application for a security clearance. Born and raised in Thailand, Applicant came to the U.S. in the mid-2000s . She became a U.S. citizen in the late 2000s. Question 6 of Section 20B of her SCA inquired the following: “Have you EVER held or do you now hold a passport that was issued by a foreign government?” She answered “yes,” and stated that she had turned in an expired Thai passport. She did not advise that she possessed a valid Thai passport with a July 28, 2010, expiration date. During a subsequent interview, Applicant initially denied having a current Thai passport. However, later in the interview, she admitted that she possessed one. She stated that she had not reported it because she was concerned that it might be a reason for her to be denied a clearance. Applicant’s mother is a citizen and resident of Thailand, as is her sibling. The two live at the same address. Applicant has telephone contact with her mother once a week and with her sibling once or twice a year. She also maintains internet contact with numerous citizens and residents of Thailand. She maintains contact with some of them through social network sites. She does not know the occupations or titles of many of these persons. In her analysis of Applicant’s case, the Judge concluded that her family ties raised security concerns under Guideline B. She also concluded that Applicant’s failure (1) to list her current Thai passport on her SCA and (2) to mention it initially during her interview were deliberate. She concluded that these falsifications were recent and significant infractions that “go to the very heart of her eligibility for a security clearance.” Decision at 11. Accordingly, the Judge concluded that Applicant had failed to meet her burden of persuasion as to mitigation. In her appeal brief, Applicant claims that the Judge erred in her findings of deliberate falsification. However, after examining the record, we conclude that the Judge’s material findings of security concern are supported by substantial record evidence. See Directive ¶ E3.1.32.1. (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.”). After considering the record as a whole, we conclude that Applicant’s foreign contacts1 and her two false statements support the Judge’s adverse conclusions regarding mitigation, under both Guideline B and Guideline E. The record supports a conclusion 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). 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 Judge’s adverse security clearance decision is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, 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 Applicant’s internet contact with numerous Thai citizens was not alleged as a security concern. However, it is a matter that the Judge could consider on the issue of mitigation. See, e.g., ISCR Case No. 08-06859 at 4 (App. Bd. Oct. 29, 2010).