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ISCR Case 14-01607.a1 — CASE

ISCR Case 14-01607.a1denied

Case Headnote

ISCR Case No. 14-01607.a1

Apr 9, 2015· Hon. Michael Y. Ra'anan· appeal

Summary

A 45-year-old applicant with an advanced degree was denied a security clearance under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from the deliberate falsification of his security clearance application, specifically providing untrue answers regarding his debts.

Further contributing to the denial was the applicant's ongoing financial irresponsibility, evidenced by several delinquent debts. The applicant failed to provide credible explanations for his financial situation, and the judge found his claims of errors in the findings to be unsupported and lacking in credibility.

The judge emphasized the critical importance of honesty in security clearance applications. Ultimately, the applicant's request for a security clearance was denied due to these issues.

Conditions Referenced

Disqualifying

AG ¶ 15raisedPersonal 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 issuedJun 20, 2014
Answer filed—
Hearing heldDec 31, 2014
Decision dateApr 9, 2015

Cite For

Deliberate Falsification of Security Clearance Applications Under Guideline E
Financial Irresponsibility as a Basis for Security Clearance Denial Under Guideline F
Importance of Credibility in Applicant's Explanations Regarding Financial Matters

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 who was denied due to concerns under Guideline F (Financial Considerations) and Guideline E (Personal Conduct). 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 substantial evidence supported the findings and that the applicant did not demonstrate harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowNoreen A. Lynch — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge erred in finding that he still owed several of his debts.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant claimed 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 based on substantial evidence and that the applicant failed to rebut the presumption that the Judge considered all evidence. The Board deferred to the Judge's credibility determinations and found no harmful error in the Judge's decision.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewDeference to the judge’s credibility calls

Appeal Board panel

Michael 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: The Judge’s findings, including that Applicant had deliberately falsified his application, were based upon substantial record evidence. Applicant failed to rebut the presumption that the Judge considered all of the evidence. We give deference to a Judge’s credibility determination. Hearing Office cases are not binding on other Hearing Office Judge or on the Appeal Board. Adverse decision affirmed. CASE NO: 14-01607.a1 DATE: 04/09/2015 DATE: April 9, 2015 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-01607

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 June 20, 2014, DoD 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 December 31, 2014, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Noreen A. Lynch 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 45 years old. He received an undergraduate degree in 1992 and an advanced degree in 1999. His wife has a daughter who lives with them, and Applicant has two children from a previous marriage. This is Applicant’s first effort to obtain a security clearance. Applicant has several delinquent debts, for such things as communication services, medical expenses, and student loans. He has recently paid several accounts. He experienced two months of unemployment in the past and has had to pay child support, which reduced his disposable income. He estimated that his student loans total about $140,000, including interest. Applicant stated that he neglected to pay his student loans due to other financial obligations. He acknowledged that, regarding the loans, “he got busy and put it on the back burner.” Decision at 3. He also admits that he has not been diligent about monitoring his credit. Applicant first obtained student loans in 1993. At some point prior to 2011, the Department of Education (DoED) started proceedings to garnish his wages. Applicant believed that the amounts that the DoED was seeking to recover were not accurate. There is nothing in the record to show any financial counseling. Applicant has credit cards that are “almost maxed out.” Id. at 3. He pays about $25 on them a month. He also stated that he borrows money each month from his parents because he has a negative monthly remainder. Applicant’s wife has just taken a part-time job. His annual salary is $115,000. The Judge noted Applicant’s contention that some of his debts were no longer listed in his credit reports. Applicant enjoys a good reputation for the quality of his work performance. A witness, who has known Applicant for two years, finds him to be reliable. Another witness, a personal friend, regards him as reliable and trustworthy. Applicant’s wife testified that he handles the financial matters for the family. She did not know about the reason for the security clearance hearing. In completing his security clearance application (SCA), Applicant answered “no” to two questions: (1) whether, within the previous seven years, any of his debts had been turned over to collection agencies and (2) whether he was currently over 120 days delinquent on any debt. These answers were untrue. The Judge quoted Applicant’s comment at the end of his SCA about his finances: “all valid (emphasis added) current loans and financial obligations are being paid. There are past financial obligations that are no longer delinquent because they are either disputed, closed, [charged-off], or unreported (but none of these obligations are current delinquencies.”) Decision at 4. The Judge stated that she found Applicant’s explanation to be lacking in credibility. She found that he knew about the status of his student loans because the DoED had been seeking wage garnishment and Applicant had requested a hearing before that agency. She noted Applicant’s citation to various ethical principles associated with his profession and to his character evidence. He argued that this evidence demonstrated his honesty. However, she concluded that, given Applicant’s level of education and experience, he was not being candid when he answered the questions as he did. The Judge’s Analysis The Judge reiterated her conclusions about Applicant’s lack of candor. She found his explanations to be “disingenuous,” stating that they did not convince her that Applicant is reliable or trustworthy. Decision at 6. She also noted evidence that Applicant’s student loans remained unpaid until 2013, precluding a conclusion that they occurred so long ago that they no longer cast doubt upon Applicant’s trustworthiness. She stated that he had not acted responsibly in regard to his debts and that he is currently paying his student loans under threat of garnishment. In the whole person analysis, the Judge noted evidence that Applicant had paid some of his debts. She cited to his level of education, his professional responsibilities, and his evidence of good job performance. However, she stated that Applicant had not mitigated the concerns in his case.

DISCUSSION

Applicant challenges some of the Judge’s findings of fact. He denies that he deliberately falsified his SCA. He also claims that the Judge erred in finding that he still owed several of his debts, insofar as some of them no longer appear on his credit reports. We examine a Judge’s findings of fact to see if they are supported by “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. In evaluating an applicant’s mens rea, a Judge must consider the applicant’s answers in light of the record as a whole. See, e.g., ISCR Case No. 13-00142 at 3 (App. Bd. Oct. 15, 2014). Concerning the deliberate nature of Applicant’s SCA response, we note the Judge’s reliance on Applicant’s maturity, education, and professional experience, which made it unlikely that he actually believed that charged-off or unreported debts were no longer owed or that a basis to dispute the amount of a debt rendered the obligation itself invalid. Her analysis of this issue focused in large measure upon the student loans. Given Applicant’s admission that he had neglected these loans, his testimony that he should have answered the questions differently (Tr. at 39), and his 2011 request that the DoED provide a hearing regarding the debt, the record supports a conclusion that Applicant could not reasonably have believed that he was providing full, frank, and truthful answers when completing his SCA.1 See, e.g., ISCR Case No. 08-01075 at 6 (App. Bd. Jul. 26, 2011). Moreover, concerning Guideline F, evidence that debts are no longer contained in credit reports is not a reason for finding that they have been resolved, as Applicant asserted in his brief. See, e.g., ISCR Case No. 98-0111 at 3 (App. Bd. Nov. 13, 1998). The Judge’s material findings of security concern are supported by substantial evidence or constitute reasonable inferences that could be drawn from the evidence. Applicant has not cited to any harmful error in the Judge’s findings of fact. Applicant’s citation to his favorable evidence, such as his character witnesses and his efforts at debt resolution, are not enough to rebut the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No.13-00828 at 4 (App. Bd. Feb. 26, 2015). Neither has he demonstrated that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-01509 at 2 (App. Bd. Jan. 29, 2015). Despite Applicant’s argument to the contrary, the record as a whole supports the Judge’s conclusion that his presentation lacked credibility. We give deference to a Judge’s credibility determinations. Directive ¶ E3.1.32.1. Applicant has cited to other Appeal Board cases which, he contends, support his effort to obtain a clearance. Those cases are distinguishable on their facts from the case at issue. For example, Applicant cites to the Board decision in ISCR Case No. 02-28917 (App. Bd. June. 10, 2005). In that case the applicant admitted the indebtedness but was unsure of specifics. In the case before us, Applicant’s answers to the SCA constituted denials of indebtedness. The Judge has articulated a satisfactory explanation for her decision. Unsatisfied debts are a continuing course of conduct for the purpose of DOHA adjudications. See, e.g., ISCR Case No. 10-11083 at 2 (App. Bd. Dec. 17, 2012). A Judge may consider not only the extent to which debts have been paid but the circumstances underlying them as well. See, e.g., ISCR Case No. 11-00046 at 3 (App. Bd. Feb. 10, 2012). See also Directive, Enclosure 2 ¶ 15, supra, at note 1. 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: 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 See Directive, Enclosure 2 ¶ 15: “Conduct involving . . . lack of candor . . . can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information . . . The following will normally result in an unfavorable clearance action . . . refusal to provide full, frank, and truthful answers to lawful questions of investigators, security officials, or other official representatives in connection with a personnel security . . . determination.”