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ISCR Case 02-20349.h1 — CASE

ISCR Case 02-20349.h1denied

Case Headnote

ISCR Case No. 02-20349.h1

deniedSep 30, 2003· Hon. James A. Young· hearing

Summary

A 23-year-old applicant was denied a security clearance under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct) due to deliberate falsification of their security clearance application (SCA). The applicant failed to accurately answer question 24 on the SCA, specifically omitting a prior arrest for Driving While Intoxicated (DWI). This omission was considered a violation of 18 U.S.C. § 1001, which prohibits making false statements to the U.S. government.

The judge determined that the applicant's deliberate concealment of the DWI arrest demonstrated a lack of candor and trustworthiness, which are essential for security clearance eligibility. Disqualifying conditions J.2.a (a pattern of criminal conduct) and E.2.a (deliberate misrepresentation) were raised.

Despite mitigating conditions J.1 (the criminal conduct was not recent), J.2 (the individual voluntarily reported the criminal conduct), and J.6 (the individual has demonstrated rehabilitation), the clearance was denied. The denial was based on the applicant's deliberate falsification of the SCA, the self-interested nature of concealing the arrest, and the failure to demonstrate rehabilitation from the criminal conduct of falsifying the application.

Why the Applicant Was Denied

The applicant deliberately falsified his security clearance application by omitting a DWI arrest.
The applicant's self-interest in concealing his arrest indicated a lack of trustworthiness.
The applicant failed to demonstrate rehabilitation from his criminal conduct of falsifying his application.

Conditions Referenced

Disqualifying

J.2.araisedCriminal Conduct
E.2.araisedPersonal Conduct

Mitigating

J.1rejectedCriminal Conduct Not RecentThe falsification occurred less than three years ago.
J.2rejectedIsolated IncidentThe applicant had a prior DWI arrest.
J.6rejectedEvidence of RehabilitationThe applicant did not inform his employer of his DWI.

Key Rule Quoted

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

Procedural Posture

SOR issuedMay 5, 2003
Answer filedJun 12, 2003
Hearing heldAug 29, 2003
Decision dateSep 30, 2003

Cite For

Denial of Security Clearance Due to Falsification of Application Under Guideline E
Lack of Candor as a Disqualifying Factor Under Guideline J
Failure to Demonstrate Rehabilitation From Criminal Conduct.

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 the allegation of falsifying his security clearance application by omitting his DWI arrest. However, the judge found for the applicant regarding the allegation of being arrested for DWI, concluding it did not represent a security concern. The overall outcome was a denial of the security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	Applicant deliberately falsified his SCA by failing to answer question 24 accurately.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	Denied	(b) deliberately providing false information to an investigator or official	—	—
1.b	Applicant was arrested for DWI.	For Applicant	Questionable Judgment General	—	Admitted	—	—	—

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 J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on the criminal conduct allegation, determining that the applicant had committed a serious offense by deliberately omitting information about his DWI arrest from his security clearance application. The applicant's actions were deemed to raise significant concerns regarding his judgment and trustworthiness, leading to the denial of his security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	Applicant violated 18 U.S.C. § 1001 by deliberately omitting information about his alcohol-related arrest from his SCA.	Against Applicant	DUI or DWI Criminal	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—

Descriptive standardized rendering of a decided public case (Guideline J). 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 30, 2003

In re:

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

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

Applicant for Security Clearance

ISCR Case No. 02-20349

DECISION OF ADMINISTRATIVE JUDGE

JAMES A. YOUNG

SYNOPSIS

Applicant falsified his security clearance application, a violation of 18 U.S.C. § 1001, by knowingly and willfully failing to acknowledge he had been arrested for driving while intoxicated. 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 5 May 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) and criminal conduct (Guideline J) personnel security guidelines of the Directive. Applicant answered the SOR in writing on 12 June 2003 and elected to have a hearing before an administrative judge. The case was assigned to me on 12 August 2003. On 29 August 2003, I convened a hearing to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. DOHA received the transcript (Tr.) of the proceeding on 8 September 2003.

FINDINGS OF FACT

On 7 May 1998, Applicant was arrested and charged with driving while intoxicated (DWI). Ex. 4; Ex. 3 at 2. Subsequently, in September 1998, Applicant pled guilty to the charge. Ex. 3 at 2. Applicant continues to drink alcoholic beverages, but in moderation. His use of alcohol has not caused him any other problems with the law, his schools, or his work place. Ex. 3 at 3.

On 13 October 2000, Applicant, who was then 23 years old, signed a security clearance application (SCA) attesting that his answers were "true, complete, and correct to the best of [his] knowledge and belief." He acknowledged understanding that "a knowing and willful false statement could be punished by fine, imprisonment, or both" under 18 U.S.C. § 1001. Ex. 2 at 10. Question 24 on the SCA asked if Appellant had ever been charged or convicted of any offense related to drugs or alcohol. Applicant answered, "no." Id. at 8.

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

Guideline E-Personal Conduct

In the SOR, DOHA alleged Applicant deliberately falsified his SCA by failing to answer question 24 accurately (¶ 1.a.) and was arrested for driving while intoxicated in 1998 (¶ 1.b.). 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 deliberately omitted relevant and material information from his SCA. DC 2.2. Applicant admits that he deliberately failed to acknowledge his 1998 DWI arrest because he was concerned that his employer and fellow employees would learn of his arrest, he would not get a security clearance, and he would lose his job. Ex. 3 at 3; Tr. 9, 20-21. He claims that he hoped to speak to a Defense Security Service (DSS) agent about his arrest and his concerns. Tr. 9. But Applicant never contacted DSS in the approximately 16 months between the submission of his SCA and his being confronted by a DSS agent. Tr. 22. Applicant's shame over his DWI arrest, and the steps he took to conceal it from others, made him a prime candidate for blackmail. An applicant's self-interest in protecting his reputation and keeping his job does not justify or excuse his deliberate falsifications. See ISCR Case No. 99-0442, 1999 DOHA LEXIS 164 at *4 (App. Bd. Apr. 22, 1999). Applicant did not make a prompt good-faith effort to correct the falsification before being confronted by the DSS agent. Therefore, MC 3.3 does not apply; nor do any of the other mitigating conditions listed under this guideline. Finding is against Applicant on ¶ 1.a. The Government alleged in ¶ 1.b. that Applicant was arrested for DWI. Reliable, unfavorable information may be a security concern if it demonstrates an applicant's conduct involves questionable judgment, unreliability, dishonesty, or unwillingness to comply with rules and regulations. DC 2.1. However, Applicant demonstrated that alcohol is not a problem for him. After applying the adjudicative process factors contained in the Directive ¶ 6.3, I conclude Applicant's DWI does not represent a security concern under Guideline E. However, Applicant's DWI is evidence that supports a conclusion Applicant omitted relevant and material facts from his SCA. See SOR ¶ 1.a. Finding is for Applicant.

Guideline J--Criminal Conduct

In the SOR, DOHA alleged Applicant violated 18 U.S.C. § 1001 by deliberately omitting information about his alcohol- related arrest from his SCA. ¶ 2.a. A history or pattern of criminal activity creates doubt about an applicant's judgment, reliability, and trustworthiness.

It is a felony to knowingly and willfully make any materially false, fictitious, or fraudulent statement or representation in any matter within the jurisdiction of the executive branch of the United States Government. 18 U.S.C. § 1001(a)(2). The granting of a security clearance is a matter within the executive branch of the United States Government. See Egan, 484 U.S. at 527. Knowingly and willfully falsifying an SCA constitutes a violation of 18 U.S.C. § 1001. ISCR Case No. 01-06870, 2002 DOHA LEXIS 469 at *13 (App. Bd. Sep. 13, 2002) (citing United States v. Yermian, 468 U.S. 63 (1984)). The Government established by substantial evidence that Applicant committed a serious offense. Applicant admitted he deliberately omitted relevant and material information from his SCA. DC 1; DC 2.

Applicant contends the criminal conduct was not recent (MC 1), was an isolated incident (MC 2), and there is clear evidence of successful rehabilitation (MC 6). I disagree. The criminal conduct was recent. The falsification occurred less than three years ago and the hearing was the litigation of the falsity. Although this may be Applicant's only violation of 18 U.S.C. § 1001, it is not Applicant's only criminal conduct-he was arrested for DWI in 1998. And, while there may be evidence that he has rehabilitated himself from the drinking that led to his DWI, there is no evidence that he is rehabilitated from his criminal conduct of falsifying his SCA. In fact, at the time of the hearing, Applicant still had not informed his employer of his DWI. Tr. 24-25. Applicant failed in his burden to establish that he is clearly rehabilitated. Finding is against Applicant.

FORMAL FINDINGS

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

Paragraph 1. Guideline E: AGAINST APPLICANT

Subparagraph 1.a.: Against Applicant

Subparagraph 1.b.: For Applicant

Paragraph 2. Guideline J: AGAINST APPLICANT

Subparagraph 2.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

02-20349.h1 FOR GOVERNMENT Eric H. Borgstrom, Esq., Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...omputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-20349.h1.html[6/24/2021 11:01:40 AM] 02-20349.h1