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ISCR Case 15-08162.a1 — CASE

ISCR Case 15-08162.a1denied

Case Headnote

ISCR Case No. 15-08162.a1

Nov 3, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, represented by counsel, was denied eligibility based on concerns under Guideline E (Personal Conduct) and Guideline M (Use of Information Technology). The denial stemmed primarily from the applicant's intentional falsification of responses to security clearance application questions, a disqualifying condition under E2.A5.2.1.

Specifically, the applicant admitted to misusing a company computer and providing misleading information regarding disciplinary actions taken against him. The judge found the applicant's testimony regarding these omissions and misstatements not credible, concluding that his actions were inconsistent with the standards required for national security eligibility.

Despite the consideration of mitigating conditions under E2.A5.2.2, the appeal board affirmed the judge's credibility determinations and conclusions. The board found substantial evidence supporting the denial, leading to the final outcome of a denied security clearance.

Conditions Referenced

Disqualifying

E2.A5.2.1raisedDeliberate Omission, Concealment, or Falsification of Relevant Facts From Any Personnel Security Questionnaire or During Any Personnel Security Interview.

Mitigating

E2.A5.2.2rejectedThe Individual Did Not Knowingly Falsify or Conceal Relevant Information.The judge found the applicant's testimony regarding his intent not credible.

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 issuedJul 2, 2016
Answer filed—
Hearing heldAug 14, 2017
Decision dateNov 3, 2017

Cite For

Intentional Falsification of Security Clearance Application Responses Under Guideline E
Credibility Determinations by Judges in Security Clearance Cases
The Standard for Granting Security Clearances in Relation to 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 challenge to the Administrative Judge's conclusion that the Applicant intentionally falsified his responses to security clearance application questions. The Applicant argued that his omissions were out of character. The Board affirmed the Judge's decision, finding the arguments unpersuasive and supported by substantial evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowEdward W. Loughran — denied the clearance

Decided ona hearing

Guidelines belowGuideline MGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argues that the Judge's conclusion that he intentionally falsified his responses to the SCA questions was arbitrary and capricious.

Why the Board ruled this way

The Board found that the Judge's conclusion that Applicant intentionally falsified his SCA responses was supported by substantial evidence and that the Judge complied with the required procedures in reaching his decision.

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 M; Guideline E DIGEST: Applicant challenges the Judge’s conclusion that he intentionally falsified his responses to the SCA questions. He argues that his SCA omissions were out of character and not something that he would knowingly or deliberately do. We do not find Applicant’s argument persuasive. Adverse decision affirmed. CASENO: 15-08162.a1 DATE: 11/3/2017 DATE: November 3, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-08162

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 July 2, 2016, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline M (Use of Information Technology) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On August 14, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Edward W. Loughran 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. The Judge’s favorable findings under Guideline M are not at issue in this appeal. Consistent with the following, we affirm. In responding to the SOR, Applicant admitted that he misused a company computer in 2013 by circumventing filtering and firewall systems to view pornographic websites and that he received a one-week suspension for violating the company’s information technology (IT) system policy. On the occasion in question, he used a flash drive with a private browser believing he would bypass the company’s firewall and prevent the company from discovering his actions. While he was permitted to use the flash drive in the company computer, he was not permitted to use the private browser. In completing a security clearance application (SCA) in 2014, Applicant responded “No” to questions that asked whether he had been suspended or disciplined for misconduct in the workplace in the last seven years or whether he used hardware, software, or media in connection with any IT system without authorization in the last seven years when specifically prohibited by rules, procedures, guidelines, or regulations. During a background interview in 2015, Applicant confirmed his negative response to the SCA question pertaining to any suspension or disciplinary action until he was confronted with his one-week suspension. He indicated that he could not recall why he answered “No” to that question, that it was an oversight, and that he may not have read the question correctly. He denied falsifying his SCA and testified that he “rubberstamped” it by simply copying information from his previous SCA without closely reading the questions. Decision at 3. The Judge did not find Applicant’s testimony credible. After considering Applicant’s age, education, experience, character evidence, and the clear wording of the questions, the Judge concluded that Applicant intentionally falsified his responses to the two SCA questions. In his appeal brief, Applicant challenges the Judge’s conclusion that he intentionally falsified his responses to the SCA questions. He argues that his SCA omissions were out of character and not something that he would knowingly or deliberately do. We do not find Applicant’s argument persuasive. First, the Appeal Board gives deference to a Judge’s credibility determinations. Directive ¶ E3.1.32.1. Second, Applicant has not asserted that the Judge made any errors in his specific findings of fact regarding the falsification allegations. We conclude the Judge’s conclusion that Applicant intentionally falsified his SCA responses is supported by substantial evidence. See, e.g., ISCR Case No. 12-03420 at 3 (App. Bd. Jul. 25, 2014). Applicant also contends that the Judge did not weigh and consider all relevant evidence. In doing so, he points to his character and other favorable evidence. His arguments are neither sufficient to rebut the presumption that the Judge considered all of the evidence in the record nor enough 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. 14-03747 at 3 (App. Bd. Nov. 13, 2015). 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. Id. Additionally, the Judge complied with the requirements of the Directive in his whole-persons analysis by considering the totality of the evidence in reaching his 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