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ISCR Case 15-00254.a1 — CASE

ISCR Case 15-00254.a1denied

Case Headnote

ISCR Case No. 15-00254.a1

Aug 26, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A retired military officer, previously holding a security clearance, was denied a new clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from the applicant's deliberate omission of delinquent debts on his security clearance application. This omission, coupled with inconsistent statements about his financial situation, significantly undermined his credibility.

The appeal board affirmed the denial, citing the applicant's lack of candor and insufficient efforts to resolve his financial difficulties. Specifically, the board found that the applicant's failure to disclose the debts was intentional, and his subsequent explanations were not credible.

The decision highlighted disqualifying conditions related to personal conduct (AG ¶ 16) and financial considerations (AG ¶ 15). Ultimately, the applicant's security clearance was denied, emphasizing the importance of honesty and proactive financial management in the clearance process.

Conditions Referenced

Disqualifying

AG ¶ 16raisedFinancial Considerations
AG ¶ 15raisedPersonal 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 issuedAug 26, 2015
Answer filed—
Hearing held—
Decision dateAug 26, 2016Decision affirmed on appeal.

Cite For

Deliberate Omissions Regarding Financial Issues Under Guideline F
Inconsistent Statements Undermining Credibility Under Guideline E
Insufficient Efforts to Resolve Financial Difficulties as a Basis for Denial.

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 financial considerations and personal conduct. The Applicant challenged the Judge's credibility determinations and findings regarding the deliberate omission of debts from his application. The Board affirmed the Judge's decision, finding substantial evidence supporting the adverse ruling.

Appealed bythe applicant

Applicant representationAttorney

Judge belowPaul J. Mason — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Credibility determination — raised by the applicantRejected
Applicant argued that the Judge erred in his credibility determination.
Erroneous finding of fact — raised by the applicantRejected
Applicant contended that the Judge erred in finding that his omission of information from his security clearance application was deliberate.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant claimed that the Judge failed to consider all of the evidence in the record, resulting in an adverse decision that 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, particularly regarding the deliberate nature of the Applicant's omission and the credibility determinations made by the Judge. The Board concluded that the Judge's decision was not arbitrary or capricious and that all evidence was considered appropriately.

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
James E. Moody
James F. Duffy

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: We conclude that the Judge’s finding about the deliberate nature of Applicant’s omission from his security clearance application is supported by substantial evidence, given the clarity of the questions, Applicant’s experience with holding a clearance, and his inconsistent statements. Adverse decision affirmed. CASE NO: 15-00254.a1 DATE: 08/26/2016 DATE: August 26, 2016 In Re: -----------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-00254

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On August 26, 2015, 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. After the hearing,1 Defense Office of Hearings and

FOOTNOTES

1 The Decision is undated. The record contains a DOHA memorandum that states that the Decision was issued on June 6, 2016. Appeals (DOHA) Administrative Judge Paul J. Mason 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 his credibility determination; whether the Judge erred in finding that Applicant’s omission of information from his security clearance application (SCA) was deliberate; and whether the Judge failed to consider all of the evidence in the record, with the result that his adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant is married and has two children, as well as two stepchildren. He pays $600 a month child support for one of the stepchildren. He served in the National Guard from 1985 to 2006. He served in an active duty status from 2006 to early 2007. At that point he believed that he would receive another assignment within a month. He was unemployed until mid-2007, when he returned to active duty. In June 2013, Applicant retired as a major. He has held a clearance since 2006 and was continuously employed from mid-2007 until late 2015. Applicant’s SOR listed four delinquent debts, for such things as a consumer good, credit cards, and telephone services. Applicant has not resolved any of these debts. For one of them, Applicant argued that its having been dropped from his credit report corroborates his claims to have resolved it. The Judge found, however, that even if a debt is no longer on a credit report it can still be unpaid. Applicant got in touch with a debt consolidation company but did not engage its services, in light of the high enrollment fee and no guarantee of success. When he completed his SCA, Applicant did not disclose his delinquent debts. In a subsequent interview, he stated that he thought his debts had been paid and was unaware of any debts that were delinquent. In his SOR response, he stated that “he was hampered by the number of questions in the [SCA]” and the time it took to complete the form. He did not explain the inconsistency between these two explanations. At the hearing, he testified that when completing his form he simply did not think of a couple of his debts. He also testified that he made a mistake in reading the questions. He also testified that, even though he was a retired military officer, he had trouble comprehending the questions. Applicant enjoys an excellent reputation for honesty and trustworthiness. At work, he is a team player. The Judges’ Analysis Regarding the Guideline F security concerns, the Judge stated that Applicant had not provided enough information to permit a conclusion that his financial problems are behind him or that he had taken responsible action in regard to his debts. He concluded that there is no evidence that Applicant’s debts are under control. He stated that Applicant did not corroborate his claim to have disputed one of the debts. Under Guideline E, the Judge found that Applicant’s omission of his debts from his SCA was deliberate. He stated that Applicant knew about two of the accounts at the time he completed the form and that he had made inconsistent statements about the matter. The Judge concluded that Applicant failed to mitigate concerns arising from his deliberate omission, citing to his continued insistence that he did nothing wrong. In the whole-person analysis, the Judge stated that Applicant made no efforts to contact two of his creditors and had not been aggressive in attempting to resolve his financial difficulties. He stated that the fact that certain debts are no longer on his credit reports does not show that they have been paid or settled. He stated that Applicant has not shown a sufficient effort at debts resolution to justify a favorable decision. Discussion Applicant challenges the Judge’s credibility determination. He states that the fact that some debts were dropped from Applicant’s credit report lends credibility to his claim of debt resolution. He also states that the Judge did not properly evaluate his credibility in making findings and conclusions under Guideline E. We are required to give deference to a Judge’s credibility determinations. Directive ¶ E3.1.32.1. In this case, we find no reason to disturb the Judge’s credibility determination. See, e.g., ISCR Case No. 14-03612 at 3 (App. Bd. Aug. 25, 2015) for the proposition that a debt being dropped from a credit report does not establish meaningful evidence as to the debt’s disposition. See also ISCR Case No. 14-01056 at 3 (App. Bd. Aug. 17, 2015) (Inconsistent statements can undermine an applicant’s credibility.) We conclude that the Judge’s finding about the deliberate nature of Applicant’s omission from his SCA is supported by substantial evidence, given the clarity of the questions, Applicant’s experience with holding a clearance, and his inconsistent statements. See ISCR Case No. 14-04226 at 3 (App. Bd. Aug. 18, 2015). Applicant’s arguments on appeal are not enough to rebut the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 14-05795 at 2 (App. Bd. Apr. 26, 2016). Applicant cites to a Hearing Office case that, he believes, supports his effort to demonstrate mitigation. We give this case due consideration as persuasive authority. However, Hearing decisions are binding neither on other Hearing Office Judges nor on the Board. See, e.g., ISCR Case No. 14-03747 at 3 (App. Bd. Nov. 13, 2015). 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board