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ISCR Case 02-19896.h1 — CASE

ISCR Case 02-19896.h1denied

Case Headnote

ISCR Case No. 02-19896.h1

deniedSep 17, 2003· Hon. James A. Young· hearing

Summary

A 40-year-old former U.S. Navy service member was denied a security clearance under Guideline E, Personal Conduct. The denial stemmed from the applicant's deliberate falsification of his security clearance application. Specifically, the applicant claimed he had never been arrested or charged with any drug-related offense, which was found to be untrue.

The judge determined that the applicant deliberately omitted a past drug-related arrest from his application. The applicant's explanations for this omission were not found credible.

Consequently, no mitigating conditions under Guideline E were applied, leading to the denial of the security clearance. The disqualifying conditions raised were E2.A5.1.1 and E2.A5.2.2.

Why the Applicant Was Denied

The applicant deliberately falsified his security clearance application by failing to disclose a past drug-related arrest.
The judge did not find the applicant's explanations credible regarding the omission of the arrest from his application.
No mitigating conditions under Guideline E were applicable to the applicant's case.

Conditions Referenced

Disqualifying

E2.A5.1.1raisedConduct Involving Questionable Judgment, Untrustworthiness, Unreliability, Lack of Candor, Dishonesty, or Unwillingness to Comply with Rules and Regulations
E2.A5.2.2appliedDeliberate Omission of Relevant and Material Facts From a Security Clearance Application

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)

Procedural Posture

SOR issuedMar 25, 2003
Answer filedApr 23, 2003
Hearing heldAug 20, 2003
Decision dateSep 17, 2003

Cite For

Deliberate Falsification of Security Clearance Applications Under Guideline E
Credibility Assessments in Security Clearance Cases
The Absence of Mitigating Conditions in Cases of Deliberate Omissions

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 deliberately falsified his security clearance application by claiming he had never been arrested or charged with any offense related to drugs. The application for security clearance was denied based on this finding.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	Applicant deliberately falsified his security clearance application by claiming he had never been arrested or charged with any offense related to drugs.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	Denied	(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

DATE: September 17, 2003

In re:

---------------------

SSN: -----------

Applicant for Security Clearance

ISCR Case No. 02-19896

DECISION OF ADMINISTRATIVE JUDGE

JAMES A. YOUNG

SYNOPSIS

Applicant deliberately falsified his security clearance application by claiming he had never been arrested or charged with any offense related to drugs. Clearance is denied.

STATEMENT OF CASE

The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant. On 25 March 2003, DOHA issued a Statement of Reasons (SOR) under the applicable Executive Order (1) and Department of Defense Directive (2) detailing the basis for its decision-failure to meet the personal conduct (Guideline E) personnel security guideline of the Directive. Applicant answered the SOR in writing on 23 April 2003 and elected to have a hearing before an administrative judge. The case was assigned to me on 14 July 2003. On 20 August 2003, I convened a hearing to consider whether it is clearly consistent with the national interest to grant Applicant's security clearance. DOHA received the transcript (Tr.) of the proceeding on 27 August 2003.

FINDINGS OF FACT

Applicant is 40 years old. Tr. 9; Ex. 1 at 1. He served in the U.S. Navy from 1987-95. Tr. 10; Ex. 1 at 6. In 1994, while he was still on active duty with the Navy, Applicant was arrested and charged with possession of drug paraphernalia by the Naval Criminal Investigative Service. Ex. 2 at 2. Applicant was offered nonjudicial punishment for this offense under Article 15, Uniform Code of Military Justice (UCMJ) (10 U.S.C. § 815). Applicant demanded trial by court- martial. At the court-martial, the charge was dismissed. Ex. 2 at 2.

On 26 March 2002, Applicant completed a security clearance application. Question 24 asked Applicant if he had ever been charged with or convicted of any offenses related to alcohol or drugs. He answered, "no." Ex. 1 at 7.

POLICIES

"[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 occupy a position . . . that will give that person access to such information." Id. at 527. The President has restricted eligibility for access to classified information to United States citizens "whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information." Exec. Or. 12968, Access to Classified Information § 3.1(b) (Aug. 4, 1995). Eligibility for a security clearance is predicated upon the applicant meeting the security guidelines contained in the Directive.

Enclosure 2 of the Directive sets forth personal security guidelines, as well as the disqualifying conditions (DC) and mitigating conditions (MC) under each guideline. In evaluating the security worthiness of an applicant, the administrative judge must also assess the adjudicative process factors listed in ¶ 6.3 of the Directive. The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant. See Exec. Or. 10865 § 7. It is merely an indication that 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 disqualify, or may disqualify, the applicant from being eligible for access to classified information. See Egan, 484 U.S. at 531. The Directive presumes a nexus or rational connection between proven conduct under any of the disqualifying conditions listed in the guidelines and an applicant's security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002); see Directive ¶ E3.1.15. 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.

CONCLUSION

In the SOR, DOHA alleged Applicant falsified his SCA by failing to acknowledge that he had been charged with a drug-related offense. Under Guideline E, conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information. Directive ¶ E2.A5.l.l.

The Government established by substantial evidence that Applicant failed to correctly answer question 24 on his SCA. The question is whether those omissions were deliberate falsifications.

In a signed, sworn statement to a Defense Security Service agent, Applicant attributed his omission of his arrest from his SCA to the fact that it was ultimately dismissed. Ex. 2 at 2. During the hearing, Applicant asserted that he thought he only had to provide information from the last seven years. He suggested that his belief was not unreasonable because question 25 asked Applicant if, in the previous seven years, he had been subject to court-martial or other disciplinary proceedings under the UCMJ. Ex. 1 at 7. After listening to his presentation and observing his demeanor, Applicant did not convince me that his failure to accurately answer question 24 was not a deliberate omission of a relevant and material fact. DC 2. None of the mitigating conditions listed under Guideline E apply.

FORMAL FINDINGS

The following are my conclusions as to the allegation in the SOR:

Paragraph 1. Guideline E: AGAINST APPLICANT

Subparagraph 1.a.: Against Applicant

DECISION

In light of all 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 Applicant. Clearance is denied.

James A. Young

Administrative Judge

1. Exec. Or. 10865, Safeguarding Classified Information within Industry (Feb. 20, 1960), as amended and modified.

2. Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended and modified.

FOOTNOTES

02-19896.h1 FOR GOVERNMENT Marc Curry, Esq., Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...omputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-19896.h1.html[6/24/2021 11:01:17 AM] 02-19896.h1