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ISCR Case 15-05344.a1 — CASE

ISCR Case 15-05344.a1denied

Case Headnote

ISCR Case No. 15-05344.a1

Dec 6, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial was affirmed by the appeal board, which underscored the importance of national security in such evaluations.

Key issues included the applicant's failure to provide corroborating evidence for claimed debt payments. More significantly, the applicant deliberately failed to disclose a prior arrest for sexual solicitation.

These uncorroborated claims and the deliberate omission of a material fact led to the denial of the security clearance. The appeal board upheld the decision, citing the applicant's personal conduct and financial considerations as disqualifying factors.

Conditions Referenced

Disqualifying

AG ¶ 16raisedPersonal 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 issuedMay 16, 2016
Answer filed—
Hearing heldAug 17, 2017
Decision dateDec 6, 2017

Cite For

Falsification of Information on Security Clearance Applications Under Guideline E
Delinquent Debts as a Disqualifying Factor Under Guideline F
Importance of National Security in Clearance Evaluations

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 based on allegations of financial considerations and personal conduct. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the findings regarding the applicant's failure to disclose an arrest and the status of delinquent debts.

Appealed bythe applicant

Applicant representationAttorney

Judge belowCarol G. Ricciardello — denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued 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 reasonable inferences from the evidence presented. The Board concluded that the applicant did not demonstrate any harmful error in the Judge's decision.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

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: From our review of the record, the Judge’s material findings regarding the falsification allegation are based on substantial evidence or constitute reasonable inferences or conclusions that could be drawn from the evidence. Adverse decision affirmed. CASENO: 15-05344.a1 DATE: 12/6/2017 DATE: December 6, 2017 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-05344

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Tokay T. Hackett, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On May 16, 2016, 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 decision on the written record. On August 17, 2017, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Carol G. Ricciardello denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm The SOR alleged 23 delinquent debts. In his Answer to the SOR, Applicant claimed most of the alleged the debts were paid in full, some were part of a consolidated payment arrangement since 2013, and others were part of a consolidated payment arrangement since 2014.1 Applicant did not provide documents to corroborate that any of the alleged debts were paid or were being paid through payment arrangements. The SOR also alleged that Applicant falsified his response to a question on a security clearance application (SCA) in 2013 by failing to disclose that he had been arrested for sexual solicitation in 2011. Regarding this allegation, the Judge found: Applicant was repeatedly given an opportunity to disclose to the investigator that he had been arrested. Each time he was asked the question, he denied he was arrested. When he was confronted with the arrest, he denied the incident ever happened. When he was again confronted with the arrest, he admitted it, but then follow[ed] up that he was not convicted. Applicant’s repeated denials [go] to his intent when he completed his SCA. He went to court, completed 40 hours of community service, paid court cost and the charge was eventually dismissed. The instructions for completion of Section 22 [of the SCA] are clear and require disclosure of any information regardless of whether the case was sealed, expunged, or otherwise stricken. I have considered that he said he was told the incident was not part of his permanent record. However, there is ample evidence to support that he was attempting to keep this information from the government by interpreting the SCA so he would not have to disclose the arrest. This is supported by his repeatedly telling the government investigator that he was never arrested, the incident never happened, and he was never convicted. In addition, he indicated in his answer to the SOR, that he was aware of the incident and aware the misdemeanor charge was dismissed, but he believed it would not be placed or searchable on his permanent record. I find Applicant deliberately failed to disclose his 2011 arrest.2 In the appeal brief, Applicant challenges the Judge’s findings of fact regarding the falsification allegation. In doing so, he makes reference a “Deferred Prosecution Agreement” and to a statute and court case involved in sealing the police record of Applicant’s arrest for sexual solicitation. Such information was not previously provided to the Judge for her consideration and constitutes new evidence that the Appeal Board cannot consider. Directive E3.1.29. Furthermore, 1 The Judge found that credit reports in Department Counsel’s File of Relevant Material (FORM) established the alleged debts. The FORM noted the absence of evidence of Applicant’s efforts to satisfy the debts. On September 8, 2016, Applicant was provided a copy of the FORM and given 30 days to file any objection or to submit additional matters. He did not submit a response to the FORM. 2 Decision at 5. given the plain language of the question in the SCA, even if the new evidence had been timely proffered, it is very unlikely that it would have altered the Judge’s findings. From our review of the record, the Judge’s material findings regarding the falsification allegation are based on substantial evidence or constitute reasonable inferences or conclusions that could be drawn from the evidence. Applicant has cited to no harmful error in the Judge’s findings. ISCR Case No. 12-03420 at 3 (App. Bd. Jul. 25, 2014). Applicant cites to evidence that he argues is favorable to him, including statements in the interview summary to the effect that “there is nothing in [his] background or lifestyle that could be used against him for blackmail or coercion, to include his arrest . . . .” Appeal Brief at 11. However, these comments summarize Applicant’s answers to the interviewer’s question. They do not constitute the interviewer’s considered opinion as to Applicant’s worthiness for a clearance. In any event, even if an investigator provided such an opinion, it would not bind the DoD in its evaluation of an applicant’s case. See, e.g., ISCR Case No. 14-03069 at 3 (App. Bd. Jul. 30, 2015).

The balance of Applicant’s arguments amount to a disagreement with the Judge’s weighing of the evidence. Specifically, he argues the Judge did not examine relevant evidence and mis- weighed the evidence. His arguments, however, are neither sufficient to rebut the presumption that the Judge considered all of the evidence nor enough to establish that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 16-00844 at 2 (App. Bd. Jul. 25, 2017). Applicant has not identified any harmful error in the Judge’s decision. 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, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility 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