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ISCR 11-15161.h1: Guideline E security clearance hearing, denied (2012) · CASE

ISCR Case 11-15161.h1denied

Case headnote

ISCR Case No. 11-15161.h1

deniedJul 31, 2012· Hon. Nichole L. Noel· hearing

Summary

A 66-year-old company owner was denied a security clearance under Guideline E (Personal Conduct) due to deliberate omissions on his application. The applicant failed to disclose repeated travel to Cuba and a prior marriage to a Cuban national, which the judge determined was an attempt to mislead the Government.

Specifically, the applicant omitted material facts about his travel to Cuba, which continued until October 2003, and his former marriage to a Cuban national. These omissions raised a disqualifying condition under Adjudicative Guideline Paragraph 16(a).

The denial was based on the finding that the applicant deliberately withheld these material facts. His explanations for the omissions were deemed incredible and disingenuous, and he did not demonstrate a prompt, good-faith effort to correct the inaccuracies on his application. The judge concluded that these actions undermined his reliability and trustworthiness.

Why the applicant was denied

The applicant deliberately omitted material facts from his security clearance application regarding his travel to Cuba and his marriage to a Cuban national.
The applicant's conflicting explanations for the omissions were deemed incredible and disingenuous.
The applicant failed to demonstrate a prompt, good-faith effort to correct the omissions on his application.

Conditions referenced

Disqualifying

AG ¶ 16(a)appliedDeliberate Omission, Concealment, or Falsification of Relevant Facts

Key rule quoted

“An applicant is expected to provide full, frank, and candid answers throughout the investigative and adjudication process.”

Procedural posture

SOR issuedJan 18, 2012
Answer filedNot specified
Hearing heldJun 20, 2012
Decision dateNot specified

Cite for

Deliberate Omission of Material Facts Under Guideline E
Credibility of Applicant's Explanations for Omissions
Expectation 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.

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Held a clearance before: Yes: “After submitting his s ecurity clearance application in De cember 2009, both Applicant and his facility received an interim security clearance in January 2010.”

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 deliberately omitted material facts from his security clearance application regarding his repeated travel to Cuba and his former marriage to a Cuban national. The judge ruled against the applicant on both allegations, concluding that the applicant's conduct raised significant concerns about his reliability and trustworthiness.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation

Descriptive standardized rendering of a decided public case. 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. 11-15161 ) Applicant for Security Clearance )

For Government: Eric Borgstrom, Esq., Department Counsel For Applicant: Christopher Graham, Esq.

07/31/2012 ______________

STATEMENT OF CASE

______________

NOEL, Nichole L., Administrative Judge:

Applicant deliberately omitted material facts from his security clearance application regarding his repeated travel to Cuba and his former marriage to a Cuban national in an attempt to mislead the Government. Clearance is denied.

Statement of the Case

Acting under the relevant Exec utive Order and DoD Directive, 1 on January 18, 2012, the Defense O ffice of Hearings and Appeals ( DOHA) issued a Statement of Reasons (SOR) explaining that it was unable to find that it is clearly consist ent with the national interest to grant Applic ant access to classified information. The SOR, whic hdetailed the reasons for the action under the personal conduct guideline, recommended the case be submitted to an administrative judge for a determination to revoke or deny Applicant’s access to classified information.

Applicant, through counsel, timely answered the SOR and requested a hearing. The case was assigned to me on April 19, 2012. The hearing took place as scheduled on June 20, 2012. At hearing, Government’s Exhibits (GE) 1 through 5 were admitted without objection. Applicant test ified and submitted Applicant’s Exhibits (AE) A through D, which were also admitted without objection. At Applicant’s request, I left the record open until June 22, 2012. He su bmitted one additional document, which I admitted as AE E without objection. I received the transcript (Tr.) on June 29, 2012.

FINDINGS OF FACT

Applicant, 66, is the owner of a company seeking to obtain a facility security clearance. After submitting his security clearance application in De cember 2009, both Applicant and his facility received an interim security clearance in January 2010.2

The SOR alleges that Applicant falsified his security clearance application by deliberately omitting his prior marriage to a Cuban national and his repeated trips to Cuba between 2002 and 2 003. Although not alleged, Applicant reported a nine-year relationship, with a girlfriend who is a Cub an expatriate living in the United States. The girlfriend is actually the ex-wife he failed to disclos e in response to the marital status question. The couple’s almost two-and-a-half-year marriage was dissolved by an annulment in 2005, af ter Applicant sponsored his ex-wife and her son’s immigration to the United States.3

Applicant initially completed the secu rity clearance application on his own, consulting the personal files he kept in his office. He felt that the task was too time consuming. Applicant believed that if he ent ered all of the required information into the electronic form that the task would take an exorbitant amount of time, which as the owner of a busy com pany, he could not spare. Accordingly, Applica nt submitted the security clearance applic ation knowing it contained incomplete and inaccurate information. He testified that his intentio nwas to provide complete and accurate information during his subject interview.4

Between February and May 2010, two investigators interviewed Applicant. In the first interview, Applicant stated that he mistakenly listed his third wife as his girlfriend on his security clearanc e application. He als o informed the investigat or that he met and married his ex-wife during his trips to Cuba between 2001 and 2002. He did not disclose the extent of his trav el to Cuba, which did not end unt il October 2003. In May 2010, another investigator conducted an interview with Applicant that lasted five days. Applicant, with the help of the investigator, scoured the files in his office and made phone calls to third parties to gather the in formation needed to completely and correctly answer the questions on the security clearance application. At the end of the interview, Applicant executed a 53-page affidavit, with attachments detailing his financial holdings, his former marriages, and his travel to Cuba between June 2001 and October 2003. He also provided explanations for the omissions on his December 2009 securit yclearance application.5

The record contains Applicant’s conflicting explanations regarding the omissions of material facts from his security clearance application. Applicant, who according to the chief financial officer of his company, is ve ry impatient with computers and has difficulty with electronic forms, claimed that the elec tronic version of the applic ation would not allow him to input his multiple div orces, his annulled marriage, or his extensive foreign travel. He also reasoned that because his marriage to his Cuban wife was annulled, she was never his wife and that the term girlfri end most accurately described her. In his opinion any other description would have been a mis representation of facts. However, the two have not had any contact since at least 2009. A pplicant further justified his actions asserting that the mere disclosure of a Cuban citizen on his security clearance application was sufficient information to prompt further investigation by the Government.6

In attempt to explain away his failure to report his travel to Cuba, Applicant avowed that at the ti me he completed his security clearance application, he believ ed that his travel occurred outside the seven- year reporting window. Contrarily, he offered that he did not list his travel to Cuba because he did not think of it as travel outside the United States, despite havi ng to clear Cuban customs upon entering and exiting the country. Applicant contends that his Cuba travel was legal, and that he complied with all U.S. rules and regulations re lated to travel to that country. However, based on a document provided by Applicant, he was inve stigated by the Department of Treasury, Office of F oreign Asset Control (OFAC), after being barred from boarding a plane t o Cuba in O ctober 2003, for su spicion of unauthoriz ed or unclaimed travel to Cuba for nine trips he made between June 2001 and June 2003. Applicant vaguely recalls the investigation, which resulted in no findings against him.7

Three witnesses testified on Applicant’s behalf. Eac htestified to Applic ant’s highly sought after and unique skill set, which makes him an invaluable resource to the Government as a federal contractor.8

POLICIES

When evaluating an applicant’s suitabi lity for a security clearance, the administrative judge must cons ider the adjudicative guidelines . In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating condi tions, which are used in ev aluating an Applicant’s eligibility for access to classified information.

The protection of the national sec urity is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning pe rsonnel being cons idered for access to classified information will be resolved in favor of national secur ity.” Under Directive ¶ E3.1.14, the Government must present evid ence to establish controverted facts alleged in the SOR. Und er Directive ¶ E3.1.15, the applic ant 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 predic ated 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 indi viduals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the applic ant may deliberately or inadvertently fail to protect classified information. Such decisions entail a certai ndegree of legally per missible extrapolation of potential, rather than actual, risk of compromise of classified information.

Section 7 of Executive Order 10865 provides that dec isions shall be “in ter ms 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) (lis ting multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline E, Personal Conduct

AG ¶ 15 explains why personal conduct is a security concern:

Conduct involving questi onable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an indiv idual’s reliability, trustw orthiness 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. Under AG ¶ 16, the following disqualifying condition applies to this case:

(a) deliberate omission, concealment, or falsification of relevant facts from a personnel security questionnaire, per sonal history statement, or similar form used conduct investigations, det ermine employment qualifications, award benefit status, determine sec urity clearance eligibility or trustworthiness, or award fiduciary responsibilities.

The SOR alleges that Applicant deliberately omitted information from his December 2009 security clearance application about his travels to Cuba and his Cuban ex-wife. Applicant denies these allegations, exp laining that while he knew his application was incomplete, his omissions were motivated by constraints on his bus yschedule, not by any intent to mislead the Government. An omission of relevant and material information is not deliberate if the person genuinely forgot about it , inadvertently overlooked it, misunderstood the question, or genui nely thought the information did not need to be reported. Conversely, an omission is deliberate when it is made knowingly and willfully. I find that Appl icant deliberately omitted relevant facts from his security clearance application in an effort to mislead the Government.

Applicant’s conflicting and incredible explanations fo rthe omissions under mine any finding that the omissions were mer ely innocent mistakes. His claim that the electronic form cannot accept the reporting of multiple marriages, annulment s, or large quantities of foreign travel entri es is not true. In addition, the record is replete with circumstantial evidence of Applicant’s intent to mislead the Government regarding the extent of his connections to Cuba. The magn itude of his deception is shown in the way he chose to mischaracterize his ex-wife as a girlfriend on his security clearance application. His rationalizat ions about the appropria teness of this characterization are disingenuous and cannot be sust ained under reasonable person standard.9 Moreover, his disclosure and subsequent explanations run afoul the plain language of the marital status question.10

None of the mitigating conditions available under AG ¶ 17 apply; however a brief discussion of AG ¶¶ 17(a) and (c) are warranted. Applicant did not make a prompt, good-faith effort to correct the omissions on his sec urity clearance application. His insistence that he intended to correct his security clearance application at his subject interview is not supported by the record. Applicant did not provide full disclos ure of the omitted information at his initial interview. Instead, he provided piecemeal disclosure over the course of two interviews occurri ng four months apar t. The latter intervie wrequired five days for the inv estigator to develop a complete record. Neither can Applicant’s omissions be consid ered minor nor immaterial as they were contrived to impede the Government’s search for the truth.

An applicant does not have the imperium to decide what information the Government needs to effectuate a complete and thorough investigation and ultimately assess an individual’s security worthiness. An applic ant is expected to provide full, frank, and candid answers throughout the in vestigative and adjudication process. with the integrity of the in dustrial security program.11 Such Failure to do so interferes behavior provides a rational basis for finding against an applicant’s security worthiness.

WHOLE PERSON CONCEPT

Accordingly, I have reservations and doub ts about A pplicant ability to protect classified information. In reac hing this conclusio n, I have also considered the whole- person factors at AG ¶ 2. My comments regarding the personal conduct guideline are incorporated into this analysis. Howev er, the circumstances surrounding Applic ant’s deliberate omissions of materi al facts raise concerns about his willingness to comply with rules and regulations as it pertains to the safeguarding of classified information. Applicant disregarded his obligat ion to provide true, complete, and correct answers to the questions on the security clearance application because he found the process discommoding. Only after Applicant expropriated a background investigator to act as his personal assistant, unnecessarily expending five days of government resources, did h e finally provide the inf ormation being solicited in the questionnaire. Applicant’s actions call into question his willingness to comply with security procedures when they are time- consuming or inconvenient. His behavior is an indication that he will put his self- interests ahead of that of the Government.

Applicant’s continued just ification of his actions prevents a finding of rehabilitation or other permanent behavior change to justify hi saccess to classifie dinformation. Furthermore, he has not demonstr ated that the mi sconduct is unlikely to recur. The record leaves doubt as to whet her Applicant would disclos e situations or circumstances, whether deliberate or inadverten t, that raise sec urity concerns. Overall, the record evidence leaves substantial doubt about Applicant’s eligibility and suitability for a security clearance. Accordingly, I conclude Applicant has not mitigated the security concerns arising from the delib erate falsification of his se curity clearance application. Clearance is denied.

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

Subparagraphs 1.a. - 1.b.: Against Applicant

CONCLUSION

In light of all of the circumstances, it is not clearly consis tent with the national interest 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 Tr. 39, 62; GE 1-2.

3 GE 1, GE 2.

4 Tr. 25-26, 40-41, 55-56, 63-64. 5 Tr. 25-26, 29-30, 45,64, 70; GE 3.

6 Tr. 24-25, 37, 43, 46, 57-60, 80-81; Answer; GE 1; GE 2.

7 Tr. 25, 32-35, 42-45; GE 2; AE E.

8 Tr. 75-91. 9 See ISCR Case No. 98 -0470 (App. Bd. Apr. 19, 1999 ) (Given the “cl early consistent with nation al interest” standard, an applicant’s conduct must be judged against the “reasonable person” standard. An applicant who is unwilling or unable to act in a reasonable manner does not demonstrate the high degree of judgment, reliability and trustworthiness required of persons granted access to classified information.) 10 See ISCR Case No. 00-0713 at 3 (Feb. 15, 2002)( the Appeal Board has applied the “plain language” test to hold that “[h]owever narrowly Applicant seeks to characterize or label the facts and circumstances,” the Applicant is bound by the plain language of the question) 11 ISCR Case No. 01-03132 (App. Bd. Aug. 8, 2002).