A decided public DOHA case, shown for research, not advice or a prediction.

ISCR Case No. 03-00577

Appeal Board

Decided Dec 11, 2006 · Administrative Judge David M. White · Appeal

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The appeal involved a denial of a security clearance based on concerns under Guidelines G, E, and J. The applicant raised multiple errors regarding the Judge's findings and application of mitigating conditions. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

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e did not err by determining that Mitigating Condition 3 does not apply to Applicant's conduct. A review of the decision shows the Judge did consider the evidence that Applicant claims the Judge failed to consider. The opinion of a witness is not binding on the Judge. Adverse decision affirmed.

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DATE: December 11, 2006

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In re:

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SSN: ----

Applicant for Security Clearance

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ISCR Case No. 03-00577

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT

Richard A. Stevens, Esq., Department Counsel

FOR APPLICANT

Pro Se

The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On October 25, 2004, DOHA issued a statement of reasons (SOR) advising Applicant of the

basis for that decision-security concerns under Guideline G (Alcohol Consumption), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct), of Department of Defense Directive

5220.6 (Jan. 2, 1992), as amended (Directive). Applicant requested a hearing. On May 19, 2006, after the hearing, Administrative Judge Mary E. Henry denied Applicant's request for a security

clearance.<A HREF="#N_1_"> (1)</A> Applicant timely appealed<A HREF="#N_2_"> (2)</A> pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.

The Administrative Judge made extensive findings of fact which need not be repeated in detail here. They will be cited as necessary in addressing material issues raised by Applicant on appeal.

Applicant asserts two errors in the Judge's findings of fact. First, he states that both the SOR and the Judge's findings incorrectly state that he had to serve five days in jail in connection with his

2002 Driving Under the Influence (DUI) conviction in California. Applicant has misread the statements in question. He was sentenced to serve five days in jail, which was suspended for five years

on probation with credit for one day actually served. Both the SOR and the findings of fact reflect that the sentence included five days of confinement, not that Applicant was required to actually

serve that sentence. The Judge commented on this in connection with her determination that this court action reflected a criminal conviction of some type, although not further identified in the

evidence as a felony or misdemeanor. Imposition of confinement distinguishes the action as criminal, as opposed to civil, in nature, so this aspect of the sentence was correctly cited and material to

the determination of whether the Government evidence established criminal conduct under Guideline J. Applicant further asserts that the Judge mischaracterized his 1995 DUI incident in Puerto

Rico, while on active duty as commanding officer of a Navy warship, as criminal behavior because he was allowed to remain in command after being awarded a punitive letter of reprimand at a

non-judicial punishment (NJP) proceeding. Although the offense was handled through non-judicial proceedings, it is the underlying criminal offense,<A HREF="#N_3_"> (3)</A> not the nature of the disposition, which is

material to the Guideline E and Guideline J security concerns. The Judge's two challenged findings of fact are supported by substantial evidence.

Applicant further asserts that the Judge's Guideline E finding against him under ¶ 2.e of the SOR is inconsistent with her findings in his favor under ¶¶ 2.c and 2.d. We review a Judge's

conclusions to determine if they are arbitrary, capricious or contrary to law.<A HREF="#N_4_"> (4)</A> The Government, in its reply brief, concedes this claim that the conclusions were inconsistent. Both parties' positions

reflect a misunderstanding of the actual Guideline E findings and conclusions reached by the Judge. The SOR, in ¶¶ 2.c, 2.d, and 2.e, alleged that Applicant deliberately provided false information

on three different matters during his January 27, 2000 interview with an authorized Department of Defense security investigator.<A HREF="#N_5_"> (5)</A> The Judge found for Applicant under ¶¶ 2.c and 2.d because she

could not find sufficient evidence of deliberate falsification in the absence of any testimony from the investigator concerning the actual content of their discussion, and without any admission by

Applicant that he had deliberately falsified information concerning the 1995 events during that particular interview. The Judge then specifically found, "[t]he government also established its case

under Guideline E, allegations 2.e. and 2.f." She then discussed the allegation under ¶2.e, that Applicant violated airport security rules by entering the baggage handling area, in connection with ¶

2.f alleging his September 1998 loss of security documents, in a San Francisco airport lounge while awaiting an overseas flight, in violation of security regulations. She accordingly found, "PC DC

E2.A5.1.2.5. (A pattern of dishonesty or rules violations . . .) applies." Decision at 10.

Some confusion concerning the Administrative Judge's findings and conclusions is evident from the respective positions of the parties in their appeal briefs. SOR ¶ 2.e reads:

e. During a January 27, 2000 interview with an authorized investigator for the Department of Defense, you falsified material facts in that you stated you had not been arrested for any felony or

misdemeanor offenses; whereas in truth you deliberately failed to disclose your arrest, as set forth below:

(1) You were arrested on December 18, 1999, in Norfolk, Virginia, and charged with (1) Assault Police Officer, a felony, (2) Escape with Force, a felony, and (3) Enter a Restricted Area. You were

found guilty of the reduced charge of Assault, a misdemeanor, for Count (1) and were sentenced to 12 months in jail, suspended, you were required to serve four weekends in jail, and pay court

costs of $146.00. You were found guilty of the reduced charge of Escape Without Force, a misdemeanor, for Count (2) and were sentenced to 12 months in jail, suspended, and pay court costs of

$22.00. You were found guilty of Count (3) and were sentenced to six months in jail, suspended, and pay court costs of $2.00.

This paragraph thus alleges both the falsification and, for the first time in the SOR, the underlying criminal conduct which was later incorporated in the Guideline J (Criminal Conduct) allegations

by reference back to this statement. In his response to the SOR, Applicant wrote, "I deny (I am not aware of this)," next to the first part of the paragraph, and "I admit (misdemeanor, see

discussion)," next to subparagraph e.(1).

As noted above, the Administrative Judge considered the admitted December 1999 violation of airport security rules together with his September 1998 violation of security regulations by losing

"security documents"<A HREF="#N_6_"> (6)</ A> in an airport VIP lounge, finding that, "a pattern of dishonesty or rules violations . . ." applied. She found for Applicant, based on mitigating circumstances, with respect to

the Guideline J (Criminal Conduct) concerns arising out of the same incident. Her finding that the cited Guideline E disqualifying condition applies based on the pattern of rules violations, even

though criminal aspects of the incident were mitigated, is sustainable.

A plain reading of the Judge's decision also indicates that she found Applicant deliberately failed to disclose his December 1999 felony arrest during the January 2000 interview, as alleged in the

first part of ¶ 2.e. The record supports her conclusion in this regard, and it is not inconsistent with her findings that the government offered insufficient proof of deliberate falsification concerning

the two other questions involving Applicant's 1995 DUI and the resulting non-judicial punishment alleged under ¶¶ 2.c and 2.d. The investigator was not called to testify concerning the specific

questions and answers at the January 27, 2000 interview. However, Applicant's very different explanations at the hearing concerning his non- disclosure of the 1995 and 1999 events, as contained in

his March 16, 2000 sworn statement, provide sufficient basis for the Judge's different conclusions.

Concerning his failure(s) to disclose the 1995 DUI and NJP in his August 13, 1999 security clearance application and January 27, 2000 (as well as February 1 and 2, 2000)<A HREF="#N_7_"> (7)</A> DSS agent interview(s),

Applicant said:

As mentioned, this was an isolated incident. My Commodore recommended I not discuss this with anyone, he was trying to protect my reputation and I still remained [sic] my 1 of 4 ranking as a

CO for the entire time of my tour as a CO. This was a very embarrassing point in my career. When questioned about it I felt it was covered by a previous investigation. There was no intent to hide

anything with regard to this incident, I feel it is in the very distant past and that it was an isolated incident, one that I have tried to put behind me and move on.

Government Exhibit 3 at 3. His explanation in that same sworn statement for not disclosing the December 1999 arrest and January 2000 conviction during the DSS agent interview(s) was:

Concerning the arrests in Dec 99 and my conviction in Jan 2000, I omitted this information because first, I felt that I was unjustly charged and although the punishment was lenient I should not have

pleaded guilty. I pleaded guilty at the recommendation of my wife to just put the whole incident behind, rather than drag it out. I felt that this incident could hurt my future employment and wanted

to keep it from the investigation.

Government Exhibit 3 at 5-6. This clearly establishes that he knew his month-old arrest and two-day old conviction on these charges was something he was being asked to disclose during the

interview but chose not to because of it's security clearance and employment ramifications. Additional testimony from the investigating agent, or other evidence, was not necessary to show

deliberate falsification concerning these virtually contemporaneous events. Accordingly, the Judge's conclusion that the evidence showed deliberate falsification concerning these matters is not

inconsistent with her finding that the government had not sufficiently proven Applicant's intent to deceive the agent during the interview concerning the earlier events. Furthermore, that conclusion

is neither arbitrary and capricious nor otherwise contrary to law.

Next Applicant asserts the Judge erred by failing to apply Personal Conduct Mitigating Conditions 2 and 3<A HREF="#N_8_"> (8)</A> to mitigate her findings that Applicant deliberately and falsely denied his 1995 DUI and

NJP in responding to pertinent questions on his 1999 Security Clearance Application. In support of this assertion Applicant states that he voluntarily corrected this "mistake" during his January

2000 security interview, and on his May 2002 Security Clearance Application. As noted above, Applicant admitted in a sworn March 2000 statement that he had not voluntarily disclosed this

information during any of the three earlier security interviews during January and February of that year, only admitting it in March when confronted again by the investigating agent. Mitigating

Condition 2 is not applicable to the fac

Order

ts of this case since it requires the falsification to have been an isolated incident, not recent, and that the correct information be voluntarily provided.<A HREF="#N_9_"> (9)</A>

itigating condition 3 requires a good-faith effort to correct the falsification before being confronted. Referring to Applicant's sworn admissions in March 2000, previously quoted, the Board

sustains the Judge's determination that Mitigating Condition 3 was not applicable to Applicant's conduct.

Finally, Applicant asserts that the Judge erred by failing to consider live testimon