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ISCR Case 01-23424.h1 — CASE

ISCR Case 01-23424.h1denied

Case Headnote

ISCR Case No. 01-23424.h1

deniedFeb 4, 2004· Hon. Richard A. Cefola· hearing

Summary

A 39-year-old defense contractor was denied a security clearance under Guideline E (Personal Conduct) due to a history of misconduct and a willful falsification on his Security Clearance Application (SCA). The Statement of Reasons cited a 1988 citation for receiving stolen property and a 1996 Article 15 punishment under the Uniform Code of Military Justice for wrongful use of a government credit card.

Crucially, the applicant knowingly and willfully failed to disclose the 1996 Article 15 on question 25 of his January 2001 SCA. This omission was deemed a deliberate falsification, raising disqualifying conditions E2.A5.2 and E2.A5.5.

The denial was based on the applicant's willful failure to disclose the Article 15, his demonstrated pattern of dishonesty through a history of misconduct, and his inability to provide credible evidence that the falsification was not deliberate.

Why the Applicant Was Denied

The Applicant willfully failed to disclose a prior Article 15 punishment on his Security Clearance Application.
The Applicant's history of misconduct demonstrated a pattern of dishonesty.
The Applicant provided no credible evidence to support his claim that the falsification was not deliberate.

Conditions Referenced

Disqualifying

E2.A5.2raisedDeliberate Omission, Concealment, or Falsification of Relevant and Material Facts From Any Personnel Security Questionnaire
E2.A5.5raisedA Pattern of Dishonesty or Rule Violations

Key Rule Quoted

“[each clearance decision must be a fair and impartial common sense determination based upon consideration of all the relevant and material information and the pertinent criteria and adjudication policy in enclosure 2, including as appropriate: a. Nature, extent, and seriousness of the conduct, and surrounding circumstances.”

Procedural Posture

SOR issuedAug 29, 2002
Answer filedJun 13, 2003
Hearing held—Determined on a written record in lieu of a hearing.
Decision dateFeb 4, 2004

Cite For

Willful Falsification of Security Clearance Application Under Guideline E
Pattern of Dishonesty as a Disqualifying Factor
Lack of Credible Evidence to Mitigate Personal Conduct Issues

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 personal conduct allegations, citing a pattern of dishonesty and willful falsification of information on a security clearance application. The applicant's prior misconduct and lack of candor were deemed significant security concerns, leading to the denial of the security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	In 1988, the Applicant was cited for Receiving Stolen Property.	Against Applicant	Pattern of Dishonesty or Rule Violations	—	Admitted	(b) deliberately providing false information to an investigator or official	—	—
1.b	In 1996, the Applicant also accepted punishment under Article 15 of the Uniform Code of Military Justice for Wrongful Use of a Government Credit Card.	Against Applicant	Pattern of Dishonesty or Rule Violations	—	Admitted	(b) deliberately providing false information to an investigator or official	—	—
1.c	In answering question 25 on his January 2001, SCA the Applicant knowingly and wilfully failed to disclose the existence of his prior Article 15.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Other	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	Claimed Other

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

DATE: February 4, 2004 In Re: --------------------- SSN: ----------- Applicant for Security Clearance ISCR Case No. 01-23424 DECISION OF ADMINISTRATIVE JUDGE RICHARD A. CEFOLA

SYNOPSIS The Applicant was cited for Receiving Stolen Property in 1988, and accepted punishment pursuant to an Article 15 for the alleged Wrongful Use of a Government Credit Card in 1996. In 2001, he failed to disclose the existence of his Article 15 when he executed his Security Clearance Application (SCA). This wilful falsification, coupled with his prior misconduct, demonstrates a pattern of dishonesty, which is clearly of security significance. Clearance is denied.

STATEMENT OF CASE

On August 29, 2002, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) to the Applicant, which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant and recommended referral to an Administrative Judge to determine whether a clearance should be denied or revoked. Applicant filed an Answer to the SOR on or about June 13, 2003. Applicant elected to have this case determined on a written record in lieu of a hearing. Department Counsel submitted the Government's File of Relevant aterial (FORM) on October 9, 2003. Applicant was instructed to submit objections or information in rebuttal, extenuation or mitigation within 30 days of receipt of the FORM. Applicant received his copy on December 2, 2003, and submitted nothing in reply. The case was received by the undersigned for resolution on January 23, 2004. The issue raised here is whether the Applicant's Personal Conduct militates against the granting of a security clearance. [The Applicant admits the citation and the Article 15, but denies the wilful falsification.]

FINDINGS OF FACT

The following Findings of Fact are based on Applicant's Answer to the SOR, and the File of Relevant Material. The Applicant is 39 years of age, and is employed by a defense contractor who seeks a security clearance on behalf of the Applicant. After a complete and thorough review of the evidence in the record, and upon due consideration of the same, I make the following additional findings of fact. Guideline E - Personal Conduct 1.a. and 1.b. In 1988, the Applicant was cited for Receiving Stolen Property (Government Exhibit (GX) 7). While stationed with the Army in Germany, he admittedly received, "between September 87 and January 88, . . . approximately $40" worth of free food, from his wife, who worked at a food outlet at the Post Exchange (GX 7 at page 3). In 1996, the Applicant also accepted punishment under Article 15 of the Uniform Code of Military Justice for Wrongful Use of a Government Credit Card, in the amount "of about $854" (GX 6 at page 2). 1.c. In answering question 25 on his January 2001, SCA the Applicant knowingly and wilfully failed to disclose the existence of his prior Article 15. The question is styled "Your Police Record - Military Court" (GX 4 at page 6). It asks, in part, "[i]nthe last 7 years, have you been subject to court martial or other disciplinary proceedings under the Uniform Code of Military Justice? (include non-judicial . . . )" (id, emphasis supplied). In his unsworn answer to the SOR, he avers "I only read police record and did not continue to read further" (GX 2 at page 3). This is not believable. He knew he was cited by the police in 1988; and as such, there is no logical reason for him not to read the rest of the question. Furthermore, the Applicant offers absolutely nothing in support of his credibility. Mitigation The Applicant offers little in the way of mitigation, but avers only that his falsification was not deliberate.

POLICIES

Enclosure 2 and Section E.2.2. of the 1992 Directive set forth both policy factors, and conditions that could raise or mitigate a security concern; which must be given binding consideration in making security clearance determinations. The conditions should be followed in every case according to the pertinent criterion, however, the conditions are neither automatically determinative of the decision in any case, nor can they supersede the Administrative Judge's reliance on his own common sense. Because each security clearance case presents its own unique facts and circumstances, it should not be assumed that these conditions exhaust the realm of human experience, or apply equally in every case. Conditions most pertinent to evaluation of this case are: Personal Conduct Conditions that could raise a security concern: (2) The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire . . . or similar form . . . ; (5) A pattern of dishonesty or rule violations . . . ; Conditions that could mitigate security concerns: None. As set forth in the Directive,"[each clearance decision must be a fair and impartial common sense determination based upon consideration of all the relevant and material information and the pertinent criteria and adjudication policy in enclosure 2, including as appropriate: a. Nature, extent, and seriousness of the conduct, and surrounding circumstances. b. Frequency and recency of the conduct. c. Age and maturity of the applicant. d. Motivation of the applicant, and the extent to which the conduct was negligent, willful, voluntary, or undertaken with knowledge of the consequence involved. e. Absence or presence of rehabilitation. f. Probability that circumstances or conduct will continue or recur in the future." The Administrative Judge, however, can only draw those inferences or conclusions that have a reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature. The Government must make out its case under Guideline E (personal conduct); which establishes doubt about a person's judgment, reliability and trustworthiness. While a rational connection, or nexus, must be shown between an applicant's adverse conduct and his ability to effectively safeguard classified information, with respect to sufficiency of proof of a rational connection, objective or direct evidence is not required. Then, the Applicant must remove that doubt with substantial evidence in refutation, explanation, mitigation or extenuation, which demonstrates that the past adverse conduct, is unlikely to be repeated, and that the Applicant presently qualifies for a security clearance. Personal conduct is conduct involving questionable judgement, untrustworthiness, unreliability, or unwillingness to comply with rules and regulations. The Government must be able to place a high degree of confidence in a security clearance holder to abide by all security rules and regulations at all times and in all places. If an applicant has demonstrated a lack of respect for the law in his private affairs, there then exists the possibility that an applicant may demonstrate the same attitude towards security rules and regulations.

CONCLUSION

The Applicant was less than candid in answering question 25 on his January 2001 SCA. In addition, there is absolutely no evidence that the Applicant came forward with the truth as to his past Article 15, until he was confronted with the falsehood in his SOR more than 19 months later. The Applicant's lack of candor, coupled with his prior acts of dishonesty, is clearly of security significance; and as such, Guideline E is found against the Applicant. Considering all the evidence, the Applicant has not rebutted the Government's case regarding his personal conduct. The Applicant has thus not met the mitigating conditions of Guideline E, and of Section E.2.2. of the Directive. Accordingly, he has not met his ultimate burden of persuasion under Guideline E.

FORMAL FINDINGS

Formal Findings required by paragraph 25 of Enclosure 3 of the Directive are: Paragraph 1: AGAINST THE APPLICANT a. Against the Applicant. b. Against the Applicant. c. Against the Applicant. Factual support and reasons for the foregoing are set forth in FINDINGS OF FACT and CONCLUSIONS, supra.

DECISION

In light of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for the Applicant. Richard A. Cefola Administrative Judge

FOOTNOTES

01-23424.h1 FOR GOVERNMENT Kathryn A. Trowbridge, Esquire, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/01-23424.h1.html[7/2/2021 2:27:46 PM] 01-23424.h1