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ISCR Case 02-33478.h1 — CASE

ISCR Case 02-33478.h1denied

Case Headnote

ISCR Case No. 02-33478.h1

deniedMar 8, 2004· Hon. James A. Young· hearing

Summary

A 39-year-old defense contractor employee was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The applicant deliberately falsified her security clearance application (SCA) by claiming employment with a concrete company when she was actually performing odd jobs for family members. Furthermore, she asked at least one individual to provide false information to investigators regarding her employment history.

The judge determined that the applicant's actions constituted a felony, a violation of 18 U.S.C. § 1001, by deliberately falsifying her SCA. Disqualifying conditions related to personal and criminal conduct were raised, specifically E2.A5.1.2.1, E2.A5.1.2.2, and E2.A10.1.2.1. While mitigating condition E2.A5.1.3.5 was considered, it was not sufficient to overcome the security concerns.

The denial was based on the deliberate falsification of her employment history on the SCA, her request for a friend to provide false information to investigators, and the fact that her admission of falsification only occurred after being confronted by a DSS agent. These actions demonstrated a lack of trustworthiness and reliability, leading to the denial of her security clearance.

Why the Applicant Was Denied

The applicant deliberately falsified her security clearance application by misrepresenting her employment history.
The applicant asked a friend to provide false information to investigators regarding her employment.
The applicant's admission of falsification occurred only after being confronted by a DSS agent.

Conditions Referenced

Disqualifying

E2.A5.1.2.2raisedDeliberately Falsified Information on a Security Clearance Application
E2.A5.1.2.1raisedQuestionable Judgment and Dishonesty
E2.A10.1.2.1raisedCriminal Conduct Related to Falsifying Information

Mitigating

E2.A5.1.3.5appliedAdmission of Falsification After ConfrontationThe applicant admitted to the falsification but only after being confronted by a DSS agent.

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 issuedSep 8, 2003
Answer filedFeb 20, 2003
Hearing heldFeb 10, 2004
Decision dateMar 8, 2004

Cite For

Deliberate Falsification of Employment History Under Guideline E
Criminal Conduct Related to False Statements Under Guideline J
Impact of Admissions Made After Confrontation on Security Clearance Decisions

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 allegations of personal conduct, specifically that she deliberately falsified her security clearance application by misrepresenting her employment history. The applicant's actions were deemed to reflect a lack of candor and untrustworthiness, leading to the denial of her security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	Applicant deliberately falsified her SCA by stating she was employed by the concrete company when, in fact, she was performing odd jobs for her father and brother.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Employment History	Denied	(b) deliberately providing false information to an investigator or official (d) pattern of dishonesty, rule violations, or other untrustworthy behavior	—	—
1.b	Applicant asked at least one individual to provide false information to any investigator inquiring about Applicant's employment history.	Against Applicant	Lack of Candor in InterviewFOUND DELIBERATE	—	Denied	(b) deliberately providing false information to an investigator or official (d) pattern of dishonesty, rule violations, or other untrustworthy behavior	—	—

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 she committed a felony by deliberately falsifying her security clearance application. The applicant's actions raised significant concerns regarding her judgment and trustworthiness, leading to the denial of her security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	Applicant committed a felony, a violation of 18 U.S.C. § 1001, by deliberately falsifying her SCA.	Against Applicant	Fraud or Deception Criminal	Conduct No Charge	Denied	—	—	—

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: March 8, 2004

In re:

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

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

Applicant for Security Clearance

ISCR Case No. 02-33478

DECISION OF ADMINISTRATIVE JUDGE

JAMES A. YOUNG

SYNOPSIS

Applicant deliberately falsified her security clearance application by claiming she worked at a company when in fact she did various odd jobs for her father and brother. Applicant failed to sufficiently mitigate the personal conduct and criminal conduct security concerns. 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 8 September 2003, DOHA issued a Statement of Reasons (SOR) (1) detailing the basis for its decision-security concerns raised under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct) of the Directive. Applicant answered the SOR in writing on 20 February 2003 and elected to have a hearing before an administrative judge. The case was assigned to me on 21 January 2004. On 10 February 2004, 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 hearing transcript (Tr.) on 19 February 2004.

Without objection from Applicant, I granted Department Counsel's motion to amend the allegation in SOR ¶ 1.b. to reflect Applicant asked "at least one employee" of the concrete company to provide false information rather than "two employees."

FINDINGS OF FACT

Applicant is a 39-year-old employee of a defense contractor working as an assistant in the security office. From 1982- 88, she served in the U.S. Army Reserve, obtaining the pay grade of E-4. She was married in 1985 and now has two children.

Applicant was born and raised in State 1. In 1998, Applicant, her husband, and children moved to State 2, where she found employment with a defense contractor. In 1999, she completed a security clearance application (SCA). Before completing the SCA, Applicant discussed with her husband how she was going to answer question 6-her employment activities-for the period 1989-98. She did not want to reveal her father and brother paid her a weekly allowance for performing "various odd jobs," including babysitting her brother's children. Ex. B at 2. Applicant had asked JD, a friend in State 1, if she could use her as a personal and work reference to confirm, if asked, that she was Applicant's supervisor at a concrete company from 1989-98. Ex. B at 4. Applicant never worked at that company. Applicant listed the friend as a reference. On 14 February 2000, Applicant was granted a secret clearance.

In August 2000, Applicant completed another SCA as part of the process required to upgrade her clearance to top secret. She answered question 6 as she had in her 1999 SCA, claiming she had worked for JD at the concrete company from 1989-98. Sometime thereafter, JD telephoned Applicant to notify her that a Defense Security Service (DSS) agent was going to interview her (JD) about Applicant's security clearance. When Applicant was confronted by the DSS agent, she admitted she had not worked for JD or the concrete company. Tr. 28.

Applicant performed all of her assigned duties for the defense contractor in an excellent or superior manner. Ex. A.

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 (1) deliberately falsified her SCA by stating she was employed by the concrete company when, in fact, she was performing odd jobs for her father and brother (¶ 1.a.) , and (2) asked at least one individual to provide false information to any investigator inquiring about Applicant's employment history (¶ 1.b.) . Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the applicant may not properly safeguard classified information. Directive ¶ E2.A5.l.l.

The Government established by substantial evidence and Applicant's admissions that Applicant knowingly and deliberately falsified relevant and material facts on her SCA. DC E2.A5.1.2.2. Applicant knew a DSS agent would contact her former employers. Tr. 43. She contends she was physically and mentally abused by her father and brother. They were angry with her for moving to State 2, and she was concerned about what they would say about her if interviewed by a DSS agent. But that is hardly a valid reason for lying on her SCA. Applicant no longer lived near her father or brother and there is no evidence Applicant was under any physical threat of coercion. Such concealment of information increased her vulnerability to coercion or exploitation. DC E2.A5.1.2.4. She also admits asking a friend to lie about Applicant's employment history, which is reliable unfavorable information about Applicant. DC E2.A5.1.2.1; E2.A5.1.2.4. Applicant took positive steps to significantly reduce or eliminate her vulnerability to coercion, exploitation, or duress by admitting her deliberate falsification to the DSS agent and at the hearing. MC E2.A5.1.3.5. However, her admission only occurred after she knew the DSS agent had discovered her lie and confronted her about it. None of the other mitigating conditions apply to this case. After carefully considering all of the evidence, I find against Applicant.

Guideline J-Criminal Conduct

In the SOR, DOHA alleged Applicant committed a felony, a violation of 18 U.S.C. § 1001, by deliberately falsifying her SCA. ¶ 2.a. A history or pattern of criminal activity creates doubt about an applicant's judgment, reliability, and trustworthiness. Directive ¶ E2.A10.1.1.

It is a criminal offense to knowingly and willfully make any materially false, fictitious, or fraudulent statement or representation in any matter within the Executive Branch of the Government of the United States. 18 U.S.C. § 1001. Security clearances are within the jurisdiction of the executive branch of the Government of the United States. See Egan at 484 U.S. at 527. Applicant deliberately lied about her employment history on her SCA which she certified as "true, complete, and correct" to the best of her knowledge and belief, and with an understanding that knowing and wilful false statements were a violation of 18 U.S.C. § 1001. An applicant may be disqualified if allegations of criminal conduct are raised against her. DC E2.A10.1.2.1. The criminal offense was not an isolated incident (MC E2.A10.1.3.2)-she deliberately falsified the 1999 SCA as well. After weighing all the evidence is this case against the disqualifying and mitigating conditions, I find 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.: Against 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. Pursuant to Exec. Or. 10865, Safeguarding Classified Information within Industry (Feb. 20, 1960), as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended and modified.

FOOTNOTES

02-33478.h1 FOR GOVERNMENT Kathryn A. Trowbridge, Esq., Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...Computer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-33478.h1.html[6/24/2021 3:06:17 PM] 02-33478.h1