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ISCR Case 15-00758.h1 — CASE

ISCR Case 15-00758.h1denied

Case Headnote

ISCR Case No. 15-00758.h1

deniedAug 31, 2016· Hon. Nichole L. Noel· hearing

Summary

A 41-year-old mechanical engineer was denied a security clearance under Guideline E (Personal Conduct) due to deliberate falsification of his security clearance application. The applicant intentionally failed to disclose foreign national contacts in Section 19 and omitted providing financial support to a foreign national in Section 20A. Additionally, he deliberately miscategorized the nature of his trips to Hong Kong in Section 20C.

The Statement of Reasons specifically cited these intentional omissions and misrepresentations. The judge found that the applicant's actions were deliberate and that his explanations for these omissions were not credible.

The denial was based on the applicant's deliberate falsification of his application, including misclassifying travel purposes and failing to disclose foreign national contacts and financial support. These actions raised disqualifying conditions under Adjudicative Guideline paragraphs 16(a) and 16(b), and the applicant's explanations were deemed insufficient to mitigate the security concerns.

Why the Applicant Was Denied

Applicant deliberately falsified his security clearance application by misclassifying the purpose of his trips to Hong Kong.
He failed to disclose foreign national contacts and financial support provided to a foreign national, despite being instructed to do so.
The applicant's explanations for his omissions were deemed not credible and insufficient to mitigate the security concerns.

Conditions Referenced

Disqualifying

AG ¶ 16(a)raisedDeliberate Omission of Information
AG ¶ 16(b)raisedDeliberate Falsification of Information

Key Rule Quoted

“A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence.”

Procedural Posture

SOR issuedSep 10, 2015
Answer filed—
Hearing heldApr 26, 2016Applicant represented himself.
Decision dateAug 31, 2016

Cite For

Deliberate Falsification of Security Clearance Applications Under Guideline E
Credibility of Applicant's Explanations for Omissions
Importance of Full Disclosure in Security Clearance Applications

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 all allegations under Guideline E, concluding that the applicant deliberately falsified his security clearance application. The applicant's failure to provide full and candid disclosures raised significant concerns about his reliability and trustworthiness, leading to the denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	Applicant intentionally falsified his security clearance application by deliberately failing to disclose his foreign national contacts in Section 19: Foreign Contacts.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Foreign Contacts or Interests	Denied	(a) deliberate omission, concealment, or falsification on a security form (b) deliberately providing false information to an investigator or official	—	—
1.b	Applicant intentionally falsified his security clearance application by deliberately failing to disclose that he provided financial support to a foreign national in Section 20A: Foreign Activities.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Foreign Contacts or Interests	Denied	(a) deliberate omission, concealment, or falsification on a security form (b) deliberately providing false information to an investigator or official	—	—
1.c	Applicant intentionally falsified his security clearance application by deliberately miscategorizing the nature of his trips to Hong Kong in Section 20C: Foreign Travel.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Foreign Contacts or Interests	Denied	(a) deliberate omission, concealment, or falsification on a security form (b) deliberately providing false information to an investigator or official	—	—

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. 15-00758 ) Applicant for Security Clearance )

For Government: David Hayes, Esq., Department Counsel For Applicant: Pro se

08/31/2016 ______________

STATEMENT OF CASE

______________

NOEL, Nichole L., Administrative Judge:

Applicant contests the Defense Department’s intent to deny his eligibility for a security clearance to work in the defense industry. Applicant deliberately falsified his April 2014 security clearance application. Clearance is denied.

Statement of the Case

On September 10, 2015, the Department of Defense (DOD) issued a Statement of Reasons (SOR) detailing security concerns under the personal conduct guideline.1 DOD adjudicators were unable to find that it is clearly consistent with the national interest to grant or continue Applicant’s security clearance and recommended that the case be submitted to an administrative judge for a determination whether to revoke or deny Applicant’s security clearance.

Applicant, through counsel, timely answered the SOR and requested a hearing. On April 4, 2016, I issued a prehearing order to the parties regarding the exchange and submission of discovery, the filing of motions, and the disclosure of any witnesses.2 The parties complied and submitted documents by the April 15, 2016 deadline. At the hearing, which proceeded as scheduled on April 26, 2015, Applicant represented himself.3 I admitted Government’s Exhibits (GE) 1 through 3 and Hearing Exhibits I – III, without objection. Applicant did not present any documents. The record remained open until May 13, 2016, to allow the parties to present additional information. Department Counsel timely submitted GE 4 and 5, which are admitted without objection. Applicant did not submit any documentation. The Defense Office of Hearing and Appeals (DOHA) received the transcript (Tr.) on May 6, 2015.

FINDINGS OF FACT

Applicant, 41, has worked as a mechanical engineer for a federal contractor since 2007. He was first granted access to classified information in 2008. The next year, Applicant completed another security clearance application and was favorably adjudicated for a higher level of access. He completed his most recent application in April 2014 as required for a periodic reinvestigation.4

In accordance with his employer’s policy, Applicant submitted a draft of his 2014 security clearance application to his employer’s security department for review. Security specialists review each application before it is submitted to identify and counsel employees about potential issues. On his draft application, Applicant disclosed that he took trips to his native Hong Kong in 2007, 2008, and 2012 to visit family and friends. The purpose of the 2007 trip was to visit his terminally ill grandmother; the purpose of the 2008 visit was to attend a relative’s wedding; and, the purpose of the 2012 trip was to visit with family and friends and join a tour group to Taiwan. Applicant also disclosed three other international trips. Based on these disclosures, the security specialist advised Applicant that he needed to disclose the names of the relatives he saw on his trips to Hong Kong before he submitted his final application. Applicant did not ask for clarification about the scope of disclosure. The security specialist also explained that international trips strictly for tourism purposes do not require disclosure of foreign national contacts.5

Instead of following the security specialist’s advice, Applicant decided to reclassify his trips to Hong Kong as tourism trips. He reasoned that the label was appropriate because he engaged in some sightseeing on each trip. He also reasoned that the reclassification eliminated the need for him to provide details about the foreign nationals he came into contact with during these visits. Applicant submitted his final security clearance application to the security officer on April 24, 2016.6 The next day, security office filed an incident report in JPAS indicating:

Employee failed to report relatives he visited in Hong Kong in December 2008 and April 2012, on his SF-86 after specifically being instructed to list the information in Section 19. Instead, in Section 20C, he changed the purpose of the travel from “Visit family or friend” to “Tourism” on both entries.7

Applicant was interviewed by a background investigator in August 2014. During the interview, Applicant revealed contact with 16 foreign nationals who are citizens of Hong Kong. He told the interviewer that he did not disclose them because he did not consider the contacts to be either close or ongoing, even though Applicant maintained regular contact with each individual he disclosed. Applicant also admitted providing support to a foreign national, his uncle. At the time of the interview, Applicant admitted to having sent his uncle $2,000 to $3,000. This support is separate from the $500 in monthly support Applicant’s mother provides to her brother, which Applicant facilitates by purchasing and sending money orders on her behalf. The investigator confronted Applicant about the facts in the incident report filed by his employer. Applicant admitted that he disregarded the security specialist’s instructions regarding the disclosure of his foreign national contacts. After the interview, Applicant’s employer filed a second incident report in JPAS, citing previously undisclosed contacts with the foreign nationals Applicant discussed during his interview.8

The SOR alleges that Applicant intentionally falsified his security clearance application by deliberately failing to disclose: his foreign national contacts in Section 19: Foreign Contacts; that he provided financial support to a foreign national in Section 20A: Foreign Activities; and, that he deliberately miscategorized the nature of his trips to Hong Kong in Section 20C: Foreign Travel. Applicant denies the allegations, claiming that he made a mistake. He offered three explanations. First, Applicant blamed having to submit the application on a tight deadline. Second, Applicant claims that he was trying to keep his disclosures consistent with his 2007 and 2008 security clearance applications where he disclosed the purpose of his Hong Kong trips as being for pleasure. Third, Applicant explained that he misunderstood the phrase “foreign national” as it was being used during his adjudication. He believed the term referred to foreign individuals who are affiliated with foreign governments, which caused him to provide incorrect answers to the questions at issue. Applicant explained that had he understood the term “foreign national” as used in this context, he would have made the appropriate disclosures.9

In the future, Applicant, who immigrated to the United States at 14 years old and completed his education in the United States, including earning a graduate degree from one of the most prestigious institutes of technology in the country, will make it “a personal goal to seek guidance whenever I come across an English term that I am unfamiliar with to ensure no future misunderstandings.” On the version of the security clearance application Applicant completed in 2014, the term “foreign national” is defined before Section 19 as, “any person who is not a citizen or national of the United States.”10

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the AG list potentially disqualifying conditions and mitigating conditions, which are used in evaluating an Applicant’s eligibility for access to classified information.

The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.” Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The applicant has the ultimate burden of persuasion to obtain a favorable security decision.

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information.

Section 7 of Executive Order 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

An applicant’s personal conduct becomes a security concern when he acts in a way that raises questions about his judgment or his ability to protect classified information.11 The SOR alleges that Applicant falsified his answers to the questions in Sections 19, 20A, and 20C, about his relationships with foreign nationals and foreign travel on his 2014 security clearance application. The record supports a finding that Applicant’s actions were deliberate.12

Applicant’s claim that he tried to keep his disclosures about his travel to Hong Kong consistent with his earlier applications does not explain the falsification. The 2014 version of the application is different from the 2008 application, offering more options to describe the purpose of international travel. The revised form gives applicants the choice of distinguishing international travel as being to “visit family and friends” or “tourism” as opposed to the general description of pleasure travel on the 2008 application. Also, Applicant’s claims that the omissions on his 2014 security clearance application were a mistake are not supported by the record. Applicant admitted that he chose to disregard instructions from his security specialist about proper disclosure of his foreign national contacts and classification of the nature of his foreign travel.

Applicant’s explanation for his failure to properly answer question 20A about providing support to foreign nationals – that he did not understand the term “foreign national,” is not credible. The term is clearly and plainly defined in the application, making the definition concocted by Applicant implausible. Furthermore, Applicant’s excuse that his limited facility with English contributed to his misunderstanding is disingenuous. When Applicant completed his 2014 security clearance, he was 39 years old and had been living in the United States continuously for 25 years. He completed high school, college, and graduate school at U.S. universities and had been working in his field and as a lecturer at local colleges since 1999. Also, after having the opportunity to observe and interact with Applicant at the hearing, it is clear he demonstrates a comfort with English commensurate with an individual of his education and professional levels.

None of the personal conduct mitigating conditions apply. Applicant’s omissions on his 2014 security clearance application are neither minor nor immaterial. He created the impression that he did not have continuing ties to his native Hong Kong. It does not matter if his motive was to hide his contacts or to avoid the task of gathering the necessary information required for the form, the result is the same. Applicant chose not to disclose the required information. Applicant’s falsifications are not mitigated by the fact that he made the disclosures during his background interview. Applicant does not have the purview to decide how and when he will parse out information to the government. An applicant is expected to provide full, frank, and candid answers at every step of the adjudication process. His failure to do is a legitimate reason for denying his access to classified information.

WHOLE PERSON CONCEPT

Based on the record, I have significant reservations about Applicant’s current reliability, trustworthiness, and ability to protect classified information. In reaching this conclusion, I have also considered the whole-person factors at AG ¶ 2. Security clearance decisions are not an exact science, but rather are predictive judgments about a person's security suitability in light of that person's past conduct and present circumstances.13 Applicant’s falsifications raise concerns about his reliability and trustworthiness. These concerns are compounded by Applicant’s testimony and demeanor at hearing. Applicant did not seem to understand the seriousness of his deliberate withholding of information during his security clearance investigation and adjudication. The Government must be able to rely on a clearance holder’s ability to self-report potentially negative information without regard for the inconvenience or the consequences of the disclosure. Applicant has proven unable to do so. Accordingly, he has not shown himself suitable for continued access to classified information.

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, Personal Conduct: AGAINST APPLICANT

Subparagraph 1.a – 1.c: Against Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with national security to grant Applicant eligibility for a security clearance. Clearance is denied.

__________________________ Nichole L. Noel Administrative Judge

FOOTNOTES

1 This case is adjudicated under Executive Order (EO) 10865, Safeguarding Classified Information within Industry, signed by President Eisenhower on February 20, 1960, as amended; as well as DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program, dated January 2, 1992, as amended (Directive). In addition, the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (AG), effective within the Defense Department on September 1, 2006, apply to this case. The AG were published in the Federal Register and codified in 32 C.F.R. § 154, Appendix H (2006). The AG replace the guidelines in Enclosure 2 to the Directive. 2 The prehearing scheduling order is appended to the record as Hearing Exhibit (HE) I. 3 Initially represented by counsel, Applicant’s attorney withdrew from the case on April 7, 2016. 4 Tr. 23-24; GE 1,3. 5 Tr. 30-31, 35-37. 6 Tr. 37-40, 46-50; GE 1-2. 7 GE 3. 8 GE 2-3. 9 Tr. 25-30, 34; Answer. 10 GE 1; Answer. 11 AG ¶ 15. 12 AG ¶¶ 16(a) and (b). 13 Department of Navy v. Egan, 484 U.S. 518, 528-29 (1988).