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ISCR Case 16-02187.h1 — CASE

ISCR Case 16-02187.h1denied

Case Headnote

ISCR Case No. 16-02187.h1

deniedAug 25, 2017· Hon. Gregg A. Cervi· hearing

Summary

A 43-year-old background investigator was denied a security clearance under Guideline E (Personal Conduct) due to concerns about her reliability and trustworthiness. The applicant was terminated from a government contractor position in December 2013 after an investigation revealed she falsified investigative reports.

The Statement of Reasons further noted that the applicant failed to disclose these falsifications on her Security Clearance Application (SCA). Instead, she attributed her termination to poor performance resulting from a decline in statistics during and after her pregnancy.

The judge determined that the applicant's explanations for her conduct did not mitigate the severity of her actions, which included falsifying official reports. The applicant also failed to provide sufficient evidence of rehabilitation or changed behavior since the incidents, leading to the denial of her security clearance.

Why the Applicant Was Denied

The applicant falsified investigative reports, which raised significant concerns about her reliability and trustworthiness.
The judge found that the applicant's explanations for her conduct did not mitigate the severity of her actions.
The applicant failed to demonstrate sufficient evidence of rehabilitation or changed behavior since the incidents.

Conditions Referenced

Disqualifying

AG ¶ 16(d)appliedCredible Adverse Information

Mitigating

AG ¶ 17(c)rejectedMinor Offense or Unique CircumstancesThe judge determined that the applicant's actions were not minor and did not occur under unique circumstances.

Key Rule Quoted

“"[N]o one has a ‘right’ to a security clearance." Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).”
— Department of the Navy v. Egan, 484 U.S. 518 (1988)

Procedural Posture

SOR issuedNov 7, 2016
Answer filedDec 8, 2016
Hearing heldJan 31, 2017
Decision dateAug 25, 2017

Cite For

Disqualifying Conduct Under Guideline E Due to Falsification of Records
Failure to Mitigate Personal Conduct Security Concerns
Importance of Whole-person Assessment in Security Clearance Decisions

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on the allegation of falsification of investigative reports, concluding that the applicant's actions raised significant concerns about her trustworthiness and reliability. However, the judge found in favor of the applicant regarding the allegation of falsification of her security clearance application, determining that she did not intentionally falsify the application as she was unaware of the allegations at the time.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	Applicant was fired from her previous position in December 2013 after an investigation found she falsified investigative reports.	Against Applicant	Pattern of Dishonesty or Rule ViolationsFOUND DELIBERATE	—	Denied	(d) pattern of dishonesty, rule violations, or other untrustworthy behavior	—	—
1.b	Applicant failed to list the falsifications on her SCA, rather she listed being terminated after her statistics dropped while she was pregnant and after her daughter was born, resulting in poor performance.	For Applicant	Falsification Security Form	Other	Unknown	—	—	—

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

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

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 16-02187 ) Applicant for Security Clearance )

For Government: Charles C. Hale, Esq., Department Counsel For Applicant: Pro se

08/25/2017 ______________

STATEMENT OF CASE

______________

CERVI, Gregg A., Administrative Judge

This case involves security concerns raised under Guideline E (Personal Conduct). Eligibility for access to classified information is denied.

Statement of the Case

Applicant submitted a security clearance application (SCA) on June 24, 2015. On November 7, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent her a Statement of Reasons (SOR) alleging security concerns under Guideline E.1 Applicant responded to the SOR on December 8, 2016, and requested a hearing before an administrative judge. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on January 11, 2017, and the hearing was convened on January 31, 2017. Government Exhibits (GE) 1 through 3 were admitted in evidence without objection. DOHA received the hearing transcript (Tr.) on February 8, 2017.

FINDINGS OF FACT

Applicant is a 43-year-old background investigator sponsored for a security clearance by a defense contractor. She received a bachelor’s degree in 1999 and has been married since 2007. She has one child who is three years old. She is currently employed in two part-time jobs as an investigator, beginning in 2014. Applicant previously worked for a government background investigation company from 2004 to 2013, conducting investigations for the Office of Personnel Management (OPM). She was terminated from this position due to poor performance, and was later notified that she was found to have falsified investigative reports.

The SOR alleges Applicant was fired from her previous position in December 2013 after an investigation found she falsified investigative reports, and for falsification of her SCA when she failed to list the falsifications, rather she listed being terminated after her statistics dropped while she was pregnant and after her daughter was born, resulting in poor performance. Applicant admitted that she falsified investigations, typically by reporting that she interviewed various sources and reviewed records, despite failing to do so. She claimed her pregnancy, maternity leave and having a baby contributed to being overwhelmed with pressure to complete more investigations in a shorter period of time.

An investigation by OPM resulted in reinvestigation of 72 cases and re-contact of 157 sources. It confirmed that Applicant submitted 14 confirmed falsified investigative reports, between April and November 2013, with an additional 73 sources showing falsification indicators but did not contain enough information to confirm falsifications. OPM removed Applicant from the contract in December 2013. She was notified that she was terminated for poor performance. She was aware of the investigation into her work before she was terminated, but did not learn of the results of the investigation until 2015 when she learned that OPM had recommended debarment. In September 2015, OPM recommended Applicant be disbarred from further government contract work. She submitted information in mitigation, and in April 2016, the debarment authority determined that no further action would be taken on the recommendation.

Applicant submitted training certificates and character statements from employers and others who know her. She is generally described as loyal, kind, honest, and trustworthy. Her testimony was credible and sincere. She testified that this was an unusual period in her life and she was unable to meet the increasing pressure to complete more cases in a shorter time. She said she is now a different person that would not succumb to similar pressures, takes her work seriously, and understands the importance of truthful reporting. She has since worked as an investigator for two companies and has performed well.

POLICIES

The Director of National Intelligence (DNI) issued revised adjudicative guidelines (AG) in a Security Executive Agent Directive, on June 8, 2017. My ultimate decision would be the same under either set of adjudicative guidelines. “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to “control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865 § 2.

National security eligibility is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies these guidelines in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider a person’s stability, trustworthiness, reliability, discretion, character, honesty, and judgment. AG ¶ 1(b).

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk that the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information.

Clearance decisions must be made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005). An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01- 20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 1(d).

ANALYSIS

AG ¶ 15 expresses the personal conduct security concern:

Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual's reliability, trustworthiness and ability to protect classified or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes.

AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying in this case. The following disqualifying condition is potentially applicable:

(d) credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse determination, but which, when combined with all available information supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the person may not properly safeguard protected information. This includes but is not limited to consideration of:

(1) untrustworthy or unreliable behavior to include breach of client confidentiality, release of proprietary information, unauthorized release of sensitive corporate or other government protected information: . . .

(3) a pattern of dishonesty or rule violations; and

(4) evidence of significant misuse of Government or other employer's time or resources.

Applicant’s work for an OPM contractor resulted in confirmed cases of falsification, with many more suspected but unconfirmed cases. She was terminated for poor performance, but did not receive notification of allegations of falsification until she received the debarment recommendation in late 2015 after she completed her SCA, therefore I find that she did not falsify her SCA. AG ¶ 16(d) applies to SOR ¶ 1.a. The guideline also includes conditions that could mitigate security concerns arising from personal conduct. I have considered all of the mitigating conditions under AG ¶ 17 and found the following relevant:

(c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment.

I considered all of the facts and circumstances of Applicant’s work product as a security clearance investigator. Her falsification of numerous investigative reports to maintain performance statistics involved personal breaches of integrity. The explanation for her poor performance and falsifying important reports rings hollow given the potential security implications. For a security clearance investigator, her actions did not constitute a minor offense, and insufficient time has passed to reconsider her for a clearance. Her actions during stressful conditions create substantial doubt about her overall trustworthiness, reliability, and good judgment as an investigator, and ultimately on her worthiness to hold a security clearance. AG ¶ 17(c) does not apply.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d):

(1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.

Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. In particular I considered Applicant’s years of contractor service, her pregnancy and personal stressors at the time, and her work since being terminated. However, I also considered that she conducted false security clearance investigations that ultimately resulted in her termination and a recommendation for debarment. Applicant failed to provide sufficient evidence to mitigate the personal conduct security concerns. Overall, the record evidence leaves me with questions and doubts about Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the security concerns arising under Guideline E.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline E: Against Applicant

Subparagraph 1.a: Against Applicant

Subparagraph 1.b: For Applicant

CONCLUSION

I conclude that it is not clearly consistent with the national security interests of the United States to grant Applicant eligibility for access to classified information. Clearance is denied.

_______________________ Gregg A. Cervi Administrative Judge

FOOTNOTES

1 The DOD CAF acted under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by the DOD on September 1, 2006. Guideline E; Personal Conduct