CASEClearance Adjudication Search EngineCASE

Loading case…

ISCR Case 06-18105.h1 — CASE

ISCR Case 06-18105.h1denied

Case Headnote

ISCR Case No. 06-18105.h1

deniedOct 31, 2007· Hon. Michael H. Leonard· hearing

Summary

A 35-year-old assistant steward was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The denial stemmed from unresolved financial issues totaling approximately $13,769 and multiple false statements made on his security-clearance application.

Specifically, the applicant made false statements in response to four questions on his application, including omissions regarding past drug use and delinquent debts. The judge determined that these were deliberately false statements.

The applicant failed to present a credible plan to resolve his outstanding debts and did not provide sufficient evidence to mitigate the security concerns raised by the government. Consequently, the security clearance was denied.

Why the Applicant Was Denied

The applicant has a history of unresolved financial problems totaling approximately $13,769.
He made multiple false statements on his security-clearance application, including omissions of drug use and delinquent debts.
The applicant did not provide sufficient evidence to mitigate the security concerns raised by the government.

Conditions Referenced

Disqualifying

DC 1appliedDeliberate Omission, Concealment, or Falsification of Relevant Facts
DC 3appliedA History of Not Meeting Financial Obligations

Key Rule Quoted

“No one has a right to a security clearance.”
— Department of Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedMay 7, 2007
Answer filedJun 25, 2007
Hearing heldOct 16, 2007
Decision dateOct 31, 2007

Cite For

Deliberate Falsification of Security-clearance Application Under Guideline E
History of Unresolved Financial Problems Under Guideline F
Insufficient Evidence to Mitigate Security Concerns Regarding Financial Obligations

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 that the applicant made multiple false statements on his security clearance application, which raised significant personal conduct concerns. The applicant's explanations for these false statements were not credible, leading to a decision against the applicant on all allegations under Guideline E.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant made false statements when providing answers to four questions on his security-clearance application.	Against Applicant	Falsification Security FormFOUND DELIBERATE	—	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—
2.b–2.d	3 sub-charges — specific text not stated in this decision (against the applicant). (low confidence)	Against Applicant		—		—	—	—

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

Standardized Decision Profile

SEAD-4 Guideline F · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant has a history of unresolved financial problems, with 14 delinquent debts totaling approximately $13,769. The judge found that the applicant failed to provide sufficient evidence to mitigate the financial concerns, leading to a denial of the security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a–1.n	14 sub-charges — specific text not stated in this decision (against the applicant).	Against Applicant			—	—	—

Descriptive standardized rendering of a decided public case (Guideline F). 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

DATE: October 31, 2007

) ) In re: ) ) ISCR Case No. 06-18105 --------------------- ) SSN: ------------- ) ) Applicant for Security Clearance )

DECISION OF ADMINISTRATIVE JUDGE MICHAEL H. LEONARD

SYNOPSIS

Applicant has a history of unresolved financial problems, which is ongoing. He has done little to demonstrate that he will resolve the financial problems in a satisfactory manner. In addition, he made multiple false statements about his background on a security-clearance application. Clearance is denied.

STATEMENT OF CASE

This is a security clearance case. Applicant contests the Defense Department’s intent to deny or revoke his eligibility for a security clearance. Acting under the relevant Executive Order and DoD Directive, the Defense Office of Hearings and Appeals (DOHA) issued a statement of reasons (SOR) to Applicant on May 7, 2007. The SOR is equivalent to an administrative complaint and it details the factual basis for the action. The issues in this case fall under Guideline F for financial considerations based on delinquent debts and Guideline E for personal conduct based on falsification of a security-clearance application.

In addition to the Directive, this case is brought under the revised Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (Revised Guidelines) approved by the President on December 29, 2005. The Revised Guidelines were then modified by the Defense Department, effective September 1, 2006. They supersede or replace the guidelines published in Enclosure 2 to the Directive. They apply to all adjudications and other determinations where an SOR has been issued on September 1, 2006, or thereafter. The Directive is pending revision or amendment. The Revised Guidelines apply here because the SOR is dated after the effective date.

On June 25, 2007, and then again on July 21, 2007, Applicant replied to the SOR and requested a hearing. The hearing took place as scheduled on October 16, 2007, and the transcript was received on October 24, 2007.

FINDINGS OF FACT

Under Guideline F, the SOR alleges 14 delinquent debts for about $13,769 in total. Based on his July response to the SOR, Applicant admits indebtedness of about $8,245 and denies the balance. Under Guideline E, the SOR alleges Applicant made false statements when providing answers to four questions on his security-clearance application. His position on these allegations will be discussed below. In addition, the following facts are established.

Applicant is a 35-year-old assistant steward who has worked for a shipping company since November 2004. This is an entry-level position, and his goal is to make a career out of it by working his way up the ladder in the steward department. He married in 2002, and he and his wife had a son in 2004. His wife is 23 years old and she is not employed outside the home.

This is the first time Applicant has applied for a security clearance, and he completed a security-clearance application in December 2004 (Exhibit 1). When signing his application, he certified that his statements were true, complete, and correct to the best on his knowledge and belief and were made in good faith, and he acknowledged that a knowing and willful false statement could be punished under federal law. Applicant submitted a “clean” application; in other words, he did not disclose any background information that was negative or derogatory. In particular, he answered the following questions in the negative:

• Question 24–asking if he had ever been charged with or convicted of any drug- or alcohol- related offenses. • Question 27–asking if he had, in the last seven years, illegally used any controlled substance, to include marijuana. • Question 38–asking if in the last seven years he had been over 180-days delinquent on any debts. • Question 39–asking if he was currently over 90-days delinquent on any debts.

The background investigation of Applicant revealed the following: (1) a 1999 arrest for possession of marijuana resulting in Applicant pleading no contest (Exhibit 8); (2) a history of marijuana use by Applicant from at least 1997 to about June 2001; and (3) credit reports containing numerous and longstanding delinquent debts (Exhibits 5, 6, and 7). He did not disclose any of this information on his security-clearance application as required by the scope of Questions 24, 27, 38, and 39.

Applicant has a history of unresolved financial problems as established by credit reports from 2005, 2006, and 2007 (Exhibits 5, 6, and 7). The credit reports form the basis for the debts in the SOR. He denied 4 of the 14 debts. In particular, he denied the indebtedness in SOR ¶ 1.e, because of a dispute over merchandise he purchased. He denied the indebtedness in SOR ¶ 1.h, because he was not familiar with the creditor. He denied the medical debts in SOR ¶¶ 1.kand 1.l, because he had no idea about the medical bills. And he denied, in part, the indebtedness in SOR ¶ 1.n, because he disputes the amount the creditor is seeking to collect on a judgment based on a delinquent credit card account. Applicant did not provide any documentary information to support his denials.

Concerning the debts he admits, Applicant has been unable to repay or otherwise resolve the indebtedness. In his testimony, he stressed that he needs to be able to work to pay his debts and his current position provides him a better opportunity to do so. He met with a consumer credit counseling organization in 2005 or 2006, but was unable to undertake a repayment plan due to lack of money. The soonest Applicant believes he will be able to begin to repay these debts is in March 2008, when he completes repaying a motorcycle loan (his transportation) and a family loan. Applicant did not provide any documentary information about these debts or about his overall financial situation.

GENERAL PRINCIPLES OF LAW AND POLICIES No one has a right to a security clearance. As noted by the Supreme Court in Department of Navy v. Egan, “the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials.” A favorable decision establishes eligibility of an applicant to be granted a security clearance for access to confidential, secret, or top-secret information. An unfavorable decision: (1) denies any application; (2) revokes any existing security clearance; and (3) prevents access to classified information at any level and retention of any existing security clearance. Under Egan, Executive Order 10865, and the Directive, any doubt about whether an applicant should be allowed access to classified information will be resolved in favor of protecting national security.

There is no presumption in favor of granting, renewing, or continuing eligibility for access to classified information. The government has the burden of presenting evidence to establish facts alleged in the SOR that have been controverted. An applicant is responsible for presenting evidence to refute, explain, extenuate, or mitigate facts that have been admitted or proven. In addition, an applicant has the ultimate burden of persuasion to obtain a favorable clearance decision. In Egan, the Supreme Court said that the burden of proof is less than the preponderance of the evidence. The agency appellate authority has followed the Court’s reasoning, and a judge’s findings of fact are reviewed under the substantial-evidence standard.12

The Revised Guidelines set forth adjudicative guidelines to consider when evaluating a person’s security clearance eligibility, including disqualifying conditions (DC) and mitigating conditions (MC) for each guideline. In addition, each clearance decision must be a fair and impartial commonsense decision based upon consideration of all the relevant and material information, the pertinent criteria and adjudication factors, and the whole-person concept. A person granted access to classified information enters into a special relationship with the government. The government must be able to have a high degree of trust and confidence in those persons to whom it grants access to classified information. The decision to deny a person a security clearance is not a determination of an applicant’s loyalty. Instead, it is a determination that the applicant has not met the strict guidelines the President has established for granting eligibility for a security clearance.

CONCLUSION

1. The Personal Conduct Security Concern

Personal conduct under Guideline E includes issues of false statements and credible adverse information that may not be enough to support action under any other guideline. In particular, a security concern may arise due to “[c]onduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations [that may] raise questions about an individual’s reliability, trustworthiness, and ability to protect classified information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.”15

The SOR alleges that Applicant made false statements when providing answers to four questions on his security-clearance application. In general, Applicant contends his statements were not deliberately false. For Question 24 about arrests, he thought the question had a five-year scope. For Question 27 about drug use, he considered it “a mandatory no” question if he wanted to get and keep the job, and he knew that his answer was false (R. 52, 63–65). For Questions 38 and 39 about delinquent debts, he knew he had debts, but did not think they were delinquent. The issue is whether Applicant’s answers to these four questions were deliberately false. Given the record evidence, the multiple allegations will be treated collectively instead of analyzing each falsification allegation individually.

The doctrine of falsus in uno, falsus in omnibus (false in one thing, false in everything) should be considered in assessing Applicant’s credibility. In his hearing testimony, Applicant essentially admitted that his answer to Question 27 was deliberately false when he described it as “a mandatory no” question (R. 52, 63–65). In addition, he seemed to concede some untruthfulness in his closing argument (R. 79). Taken together, these circumstances show his denial to Question 27 was deliberately false. Because his answer to Question 27 is so obviously false, his attempts to refute and rebut the other three falsification allegations are not persuasive. In short, Applicant’s testimony on these points has no credibility. On this basis, the record evidence is sufficient to prove Applicant made deliberately false statements as alleged in the SOR. Accordingly, the record evidence is sufficient to conclude that DC 1 applies against Applicant. All of the mitigating conditions under Guideline E have been considered and none apply in Applicant’s favor. His deliberately false answers and explanations militate against credit in extenuation or mitigation.

2. The Financial Considerations Security Concern

Under Guideline F for financial considerations, a security concern typically exists due to significant unpaid debts. “Failure or inability to live within one’s means, satisfy debts, and meet financial obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual’s reliability, trustworthiness, and ability to protect classified information.” Similarly, an individual who is financially irresponsible may also be irresponsible, unconcerned, negligent, or careless in properly handling and safeguarding classified information.

The record evidence supports a conclusion that Applicant has a history of financial problems. In this regard, his denials of four debt allegations are not accepted as valid explanations given that he did not provide corroborating evidence (documentary information) to support his denials. His history of financial problems is a security concern because it indicates inability to satisfy debts and a history of not meeting financial obligations within the meaning of Guideline F. The record evidence is more than sufficient to establish these two disqualifying conditions.

All of the mitigating conditions under Guideline F have been considered and none apply in his favor. His financial problems are longstanding and cannot be traced solely to an unexpected event or circumstance beyond his control. In addition, he presented little in the way of favorable information (including no documentary information), and his good intentions and future plans are not sufficient evidence to overcome the security concern raised by the government’s evidence. Indeed, what is missing here is: (1) a realistic approach for resolving his delinquent debts; (2) documented actions taken in furtherance of that approach; and (3) a measurable improvement to his situation. At this point, it is likely that his history of financial problems will continue.

To conclude, Applicant did not present sufficient evidence to explain, extenuate, or mitigate the security concerns. Applicant did not meet his ultimate burden of persuasion to obtain a favorable clearance decision. In reaching this conclusion, the whole-person concept was given due consideration and that analysis does not support a favorable decision for Applicant.

FORMAL FINDINGS

SOR ¶ 1–Guideline F: Against Applicant Subparagraphs a–n: Against Applicant

SOR ¶ 2–Guideline E: Against Applicant

Subparagraphs a–d: Against Applicant

DECISION

In light of all the circumstances, it is not clearly consistent with the national interest to grant or continue eligibility for security clearance for Applicant. Clearance is denied.

Michael H. Leonard Administrative Judge

FOOTNOTES

FOR GOVERNMENT Stephanie C. Hess, Esq., Department Counsel FOR APPLICANT Pro Se Executive Order 10865, dated February 20, 1960, as amended, and DoD Directive 5220.6, dated January 2, 1992, as amended (Directive). See Memorandum from the Under Secretary of Defense for Intelligence, dated August 30, 2006, Subject: Implementation of Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (December 29, 2005). Department of Navy v. Egan, 484 U.S. 518, 528 (1988) (“it should be obvious that no one has a ‘right’ to a th security clearance”); Duane v. Department of Defense, 275 F.3d 988, 994 (10 Cir. 2002) (“It is likewise plain that there is no ‘right’ to a security clearance, so that full-scale due process standards do not apply to cases such as Duane’s.”). Egan, 484 U.S. at 531. Directive, ¶ 3.2. Directive, ¶ 3.2. ISCR Case No. 02-18663 (App. Bd. Mar. 23, 2004). Directive, Enclosure 3, ¶ E3.1.14. Directive, Enclosure 3, ¶ E3.1.15. Directive, Enclosure 3, ¶ E3.1.15. Egan, 484 U.S. at 531. ISCR Case No. 01-20700 (App. Bd. Dec. 19, 2002) (citations omitted). Executive Order 10865, § 7. Revised Guidelines at 10–12 (setting forth the disqualifying and mitigating conditions). Revised Guidelines at 10. DC 1 is “deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities.” Revised Guidelines at 13–14 (setting forth the disqualifying and mitigating conditions). Revised Guidelines at 13. DC 1 is “inability or unwillingness to satisfy debts.” DC 3 is “a history of not meeting financial obligations.”