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ISCR 15-07277.a1: Guideline E security clearance appeal, denied (2017) · CASE

ISCR Case 15-07277.a1denied

Case headnote

ISCR Case No. 15-07277.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) due to intentional falsification of his security clearance application (SCA). The applicant failed to disclose two involuntary terminations from previous employment.

The judge determined these omissions constituted knowing and willful misconduct, directly raising security concerns under Guideline E. Specifically, the disqualifying condition E2 was cited, which addresses deliberate misrepresentation or omission of material facts from a personnel security questionnaire.

The applicant's arguments on appeal were found insufficient to overturn the judge's initial findings. Consequently, the judge concluded that granting the security clearance would not be consistent with national security interests, and the application was denied.

Conditions referenced

Disqualifying

E2raisedPersonal ConductThe applicant's intentional falsification of his SCA raised security concerns.

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 issuedFeb 22, 2016
Answer filed—
Hearing heldFeb 1, 2017
Decision dateApr 26, 2017

Cite for

Intentional Falsification of Security Clearance Applications Under Guideline E
Knowing and Willful Misconduct as a Basis for Denial of Security Clearance
The Standard for Granting Clearance Consistent with National Security Interests

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 allegations of intentional falsification in the security clearance application. The applicant argued that the Judge's conclusion was arbitrary and capricious. The Board affirmed the Judge's decision, finding substantial evidence supporting the conclusion of intentional falsification.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRoger C. Wesley denied the clearance

Decided ona hearing

Guidelines belowGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant contended that the Judge's conclusion of intentional falsification was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's conclusion regarding intentional falsification was supported by substantial evidence and reasonable inferences drawn from the record. The Judge's analysis was not arbitrary or capricious, and the decision was sustainable on the record.

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 E DIGEST: From our review of the record, the Judge’s conclusion that Applicant intentionally falsified his SCA is based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. Adverse decision affirmed. CASENO: 15-07277.a1 DATE: 04/26/2017 DATE: April 26, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-07277

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 February 22, 2016, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 1, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Roger C. Wesley 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 Judge’s Findings of Fact Applicant was terminated from a job for insubordination in 2010 and from another job for unsatisfactory performance in 2013. In 2014, he completed a security clearance application (SCA) and answered “no” to the questions that asked if he had ever been fired from a job, quit after being told he would be fired, left by mutual agreement following charges or allegations of misconduct, or left by mutual agreement following notice of unsatisfactory performance. He admitted to failing intentionally to disclose his involuntary separations out of embarrassment and concern his disclosures could adversely affect his future employment. In 2014, he was interviewed twice by an Office of Personnel Management agent and declined to disclose voluntarily his employment terminations. The Judge’s Analysis Applicant’s multiple omissions in his SCA and ensuing interviews about his employment history reflect recurrent acts of falsification that cannot be reconciled with actions indicative of mistake or misunderstanding. Considering all of the circumstances, his multiple omissions reflect knowing and wilful misconduct that raise security concerns under Guideline E.

DISCUSSION

Applicant contends the Judge erred in concluding that Applicant “intentionally” failed to disclose the involuntary terminations on his SCA. He claims he “admitted to making a mistake when completing his [SCA], and admitted to being sorry for this, however, he never used the words intentionally, that was something added by [the Judge].” Appeal Brief at 5-6. This contention lacks merit. First, Applicant admitted in his SOR response that he deliberately failed to disclose the involuntary terminations on his 2014 SCA. Second, Applicant’s argument that he just “admitted to making a mistake” is taken out of context. The hearing transcript reflects the following exchange: [Applicant’s Counsel]: Why did you falsify your [SCA] answers as to these two terminations? [Applicant]: That is really -- and I’m really sorry about this, because I made a mistake, and I do admit to making a mistake. First, I made the mistake, because I thought it might be a reason not to give me the clearance so I can get the job, and basically, I feel foolish that I did something like that, but it happens and I cannot take it away.1 Applicant’s response – providing false SCA answers to obtain a security clearance and a job – 1 Tr. at 94-95. supports the Judge’s conclusion of an intentional falsification. Third, his testimony that he did not disclose the terminations because he felt embarrassed about them is further evidence of an intent to falsify. Tr. at 101, 110, 112. Fourth, Applicant also denied the terminations during two background interviews. Tr. at 111-112. From our review of the record, the Judge’s conclusion that Applicant intentionally falsified his SCA is based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. See, e.g., ISCR Case No. 12- 03420 at 3 (App. Bd. Jul. 25, 2014). Applicant argues that the Judge did not consider all of the evidence. For example, he argues the Judge failed to consider the number of years of his service to the Government and the military without any security incidents. Such arguments, however, are neither enough to rebut the presumption that the Judge considered all of the evidence in the record nor sufficient to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15-04856 at 2-3 (App. Bd. Mar. 9, 2017). We give due consideration to the Hearing Office case that Applicant has cited, but it is neither binding precedent on the Appeal Board nor sufficient to undermine the Judge’s decision. See, e.g., ISCR Case No. 14-03747 at 3 (App. Bd. Nov. 13, 2015). Additionally, we find no basis for concluding the Judge erred in his whole-person analysis. 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