CASEClearance Adjudication Search EngineCASE

Loading case…

ISCR Case 14-04198.a1 — CASE

ISCR Case 14-04198.a1denied

Case Headnote

ISCR Case No. 14-04198.a1

Apr 26, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance primarily under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from the applicant's deliberate failure to disclose a DUI arrest on his security clearance application.

The judge found the applicant's explanations for this omission to lack credibility, noting that no attempt was made to correct the omission until the applicant was confronted with the facts. While the applicant received favorable findings under Guideline F regarding financial considerations, these positive factors were outweighed by the significant concerns raised under Guideline E.

Specifically, the judge applied disqualifying condition E2.A5.1.2, concluding that the applicant's lack of candor and credibility regarding the undisclosed DUI arrest was paramount. Despite the application of mitigating condition E2.A5.1.3, the overall assessment led to the denial of the security clearance.

Conditions Referenced

Disqualifying

E2.A5.1.2raisedDeliberate Omission of Information

Mitigating

E2.A5.1.3rejectedMitigating Circumstances Regarding Personal ConductThe judge concluded that none of the mitigating conditions were entitled to full application.

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 issuedMay 29, 2015
Answer filed—
Hearing heldFeb 6, 2017
Decision dateApr 26, 2017

Cite For

Deliberate Omission of Information Under Guideline E
Credibility Determinations by Judges Are Given Deference
Importance of Full Disclosure in Security Clearance Applications

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 F and Guideline E. The applicant argued that the Judge erred in finding his omission of a DUI arrest was deliberate and that the Judge failed to analyze one of the allegations. The Board affirmed the Judge's decision, finding the credibility determination supportable and the omission significant enough to warrant denial, despite a harmless error in the analysis of another allegation.

Appealed bythe applicant

Applicant representationAttorney

Judge belowClaude Heiny — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Erroneous finding of fact — raised by the applicantError found, but harmless
The Judge failed to make findings or provide analysis for one of the allegations in the SOR.
Credibility determination — raised by the applicantRejected
The Judge erred in finding that his omission from his security clearance application (SCA) was deliberate.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge's credibility determination was supported by substantial evidence and that the omission of the DUI arrest was deliberate. The Judge's findings regarding the DUI omission were sufficient to sustain the adverse decision, despite a harmless error regarding another allegation.

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: It was well within the Judge’s discretion to find Applicant’s explanation to be lacking in credibility. We give deference to a Judge’s credibility determination. Adverse decision affirmed. CASENO: 14-04198.a1 DATE: 04/26/2017 DATE: April 26, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-04198

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Gary W. Wood, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On May 29, 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. On February 6, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Claude Heiny 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 finding that his omission from his security clearance application (SCA) was deliberate and whether the Judge failed to make findings or provide analysis for one of the allegations in the SOR. The Judge’s favorable findings under Guideline F are not at issue in this appeal. Consistent with the following, we affirm.

The Judge’s Findings of Fact The Judge made the following findings pertinent to the issues raised on appeal: In March 2009, Applicant was arrested for DUI. The following year, he was found guilty and sentenced to one year of supervised probation, 60 days confinement ( suspended), and attendance at a substance abuse class, among other things. After completion of Applicant’s probation, the court issued a Judgement of Dismissal setting aside the conviction, which had the same effect as an acquittal. When he completed his SCA, Applicant failed to disclose his arrest for DUI. During his clearance interview, he initially claimed that he had not been arrested, convicted, or sentenced within the previous seven years. When confronted with his DUI, he stated that he did not list it on his SCA or during the early part of the interview because he did not have all the details regarding the offense. The Judge’s Analysis The Judge entered favorable findings under the Guideline F allegations. Concerning Applicant’s failure to have disclosed his DUI arrest, the Judge stated that the omission was deliberate. He concluded that none of the mitigating conditions were entitled to full application, stating that Applicant made no attempt to correct the error before being confronted with the facts. In the whole-person analysis, the Judge cited to evidence that Applicant meets or exceeds his performance goals at work, that he served in the military, and that he has a reputation for being a hard worker. However, he concluded that the record did not support a favorable conclusion regarding the DUI omission.

DISCUSSION

Applicant claims that the Judge erred in finding that his omission was deliberate. He argues that he believed that the dismissal and expungement of his case excused his failure to report. When evaluating the deliberate nature of an applicant’s omissions or false statements, a Judge should consider the applicant’s mens rea in light of the entirety of the record evidence. See, e.g., ISCR Case No. 14-04226 at 3 (App. Bd. Aug. 18, 2015). The SCA prefaced the question at issue with a warning that arrests and convictions must be disclosed even if the conviction had been dismissed or expunged. Government Exhibit 1, SCA, at 35. This language was clear and prominently displayed, thereby diminishing the likelihood that it might be overlooked. Moreover, in his interview, Applicant relied on his contention that he did not have enough information about the offense rather than expungement, which was not consistent with his claim on appeal. It was well within the Judge’s discretion to find Applicant’s explanation to be lacking in credibility. We give deference to a Judge’s credibility determination. Directive ¶ E3.1.32.1. Given the clarity of the question and the inconsistencies in Applicant’s explanations, we conclude that the challenged finding is supportable. Applicant contends that the Judge made no findings and provided no analysis for one of the SOR allegations. This allegation, ¶ 2c, stated that Applicant had failed to disclose that his alcohol use had resulted in police intervention and that he had been required to complete a substance abuse program. We agree that the Judge did not make a finding about Applicant’s alleged failure to have disclosed police intervention. He did make a finding about Applicant’s substance abuse course, although he appears to have concluded that Applicant’s omission of this matter was not objectively false. He did not discuss either of these matters in the Analysis portion of the Decision. Accordingly, the Judge’s findings and analysis regarding the allegation at ¶ 2cdo not support his ultimate adverse conclusion for this allegation. However, because the overall decision is independently sustainable based on the DUI omission, we conclude that this error is harmless. See, e.g., ISCR Case No. 15-00535 at 3 (App. Bd. Mar. 13, 2017). The Judge examined the relevant evidence 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