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ISCR Case 16-03527.a1 — CASE

ISCR Case 16-03527.a1denied

Case Headnote

ISCR Case No. 16-03527.a1

Jun 11, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

The applicant, a pro se individual, was denied eligibility for a Common Access Card (CAC) based on concerns raised under the Adjudicative Guidelines (AG ¶ 15 and AG ¶ 16). The denial stemmed from a false statement made in her Declaration for Federal Employment (DFE).

Specifically, the applicant falsely denied having been fired from a job within the preceding five years. The judge found her explanation of oversight regarding this omission to be not credible, particularly given the close proximity of the job termination to the DFE submission date.

Ultimately, the judge concluded that granting CAC eligibility would pose an unacceptable security risk, leading to the denial of the applicant's request.

Conditions Referenced

Disqualifying

AG ¶ 16raisedMisconduct or Negligence in Employment
AG ¶ 15raisedMaterial, Intentional False Statement, Deception, or Fraud

Key Rule Quoted

“the overriding factor . . . is unacceptable risk.”
— Instruction, Enclosure 4 ¶ 1(b)

Procedural Posture

SOR issuedJan 5, 2017
Answer filed—
Hearing heldMar 13, 2018
Decision dateJun 11, 2018

Cite For

False Statements in Employment Declarations Under Guideline E
Credibility Assessments in Security Clearance Cases
Unacceptable Risk Standard in CAC Eligibility Determinations

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 the denial of the applicant's eligibility for a Common Access Card (CAC) due to a false statement on her Declaration For Federal Employment (DFE). The applicant contended that her omission was an oversight. The Board affirmed the Administrative Judge's decision, finding that the omission was deliberate and that the denial was supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowShari Dam — denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge erred in finding her omission from the DFE was deliberate.

Why the Board ruled this way

The Board affirmed the Judge's decision, finding that the Judge's conclusion was based on substantial evidence and that the applicant's omission was not credible. The Board found no harmful error in the Judge's analysis or decision.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appealDeference 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: CAC DIGEST: Applicant was fired from a job in 2016 for poor performance. In completing her DFE, Applicant answered “no” to a question about whether, within the previous five years, she had been fired from any job for any reason. This answer was false. Applicant stated in her response to the SOR that she had been involuntarily terminated from the job but that she was not given a reason. She also stated that her omission from her DFE was due to oversight. Adverse decision affirmed. CASENO: 16-03527.a1 DATE: 06/11/2018 DATE: June 11, 2018 In Re: -----------------------------

Applicant for CAC Eligibility ) ) ) ) ) ) ) ) CAC Case No. 16-03527

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant eligibility for Common Access Card (CAC) credentialing. On January 5, 2017, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–Misconduct or Negligence in Employment concerns and Material, Intentional False Statement, Deception, or Fraud concerns, raised under the adjudicative standards in the appendices of DoD Instruction 5200.46 (Sep. 9, 2014) (Instruction). Applicant requested a decision on the written record. On March 13, 2018, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Shari Dam denied Applicant’s request for CAC eligibility. Applicant appealed pursuant to Instruction, Enclosure 4 ¶ 6. Applicant raised the following issue on appeal: whether the Judge erred in finding that her omission from a Declaration For Federal Employment (DFE) was deliberate, thereby rendering her adverse decision arbitrary, capricious, or contrary to law. Consistent with the following, we affirm the Judge’s decision. The Judge’s Findings of Fact and Analysis Applicant’s husband was killed in action while serving in the U.S. military. She was fired from a job in 2016 for poor performance. In completing her DFE, Applicant answered “no” to a question about whether, within the previous five years, she had been fired from any job for any reason. This answer was false. Applicant stated in her response to the SOR that she had been involuntarily terminated from the job but that she was not given a reason. She also stated that her omission from her DFE was due to oversight. Applicant is active in various school programs and has received recognition for her activities as a volunteer. She submitted numerous letters of recommendation from various members of the community, as well as letters of appreciation she has received due to her work with the military. Her recent performance evaluation was “outstanding.” Decision at 2. The Judge’s Analysis The Judge resolved one allegation in Applicant’s favor, which addressed the job termination itself. The Judge stated that there was insufficient evidence in the file about this matter to support an adverse determination. However, she found against Applicant on the allegation regarding her omission. She stated that Applicant’s claim that the omission was simply an oversight was not credible, noting that the question was clearly written. She also stated that the job termination and the DFE answer were only about a month apart, making it unlikely that she forgot about it or was otherwise mistaken. The Judge concluded that sufficient time has not passed to establish mitigation for this infraction.

DISCUSSION

Instruction, Enclosure 4 ¶ 6 provides that appeals to DOHA of CAC cases are accorded the established administrative procedures set out in DoD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 1991, as amended). Since its inception, the Appeal Board has been issuing decisions that interpret and analyze the administrative procedures set forth in the Directive. Because those same administrative procedures are used in appeals of CAC cases, our decisions interpreting and analyzing them apply equally here for reviewing a Judge’s actions, rulings, findings, and conclusions in accordance with the Instruction. See, e.g., CAC Case No. 15- 02333 at 3 (App. Bd. Nov. 16, 2016). In a CAC adjudication, “the overriding factor . . . is unacceptable risk.” Instruction, Enclosure 4 ¶ 1(b). The Supplemental Adjudicative Standards, which apply in this case, are designed to ensure that the issuance of a CAC does not pose such a risk. Applicant states first of all that, while the Judge’s decision was not unjust, she wanted to submit additional evidence. We are not permitted to consider new evidence on appeal. Directive ¶ E3.1.29. She reiterates the contention in her SOR response that her omission was an oversight. However, after considering the record as a whole, we conclude that the Judge’s finding was based upon substantial record evidence. CAC Case No. 16-00427 at 3 (App. Bd. Aug. 11, 2017). Applicant cites to evidence that she is a single mother who has provided valuable service to the U.S. She states that she is in danger of losing her job. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record, nor has she shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 16-01077 at 3 (App. Bd. Apr. 25, 2018); CAC Case No. 16-01524 at 5 (App. Bd. Apr. 19, 2018). The Directive does not permit us to consider the impact that an adverse decision might have upon an applicant. See, e.g., ISCR Case No. 17-01492 at 2 (App. Bd. Apr. 30, 2018). The record supports a conclusion that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The Judge’s conclusion that granting Applicant CAC eligibility poses an unacceptable risk is sustainable on this record.

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