KEYWORD: Guideline E
DIGEST: The record contained sufficient evidence to support the Judge’s finding that Applicant
was not truthful.  Adverse decision affirmed.
CASENO: 09-00266.a1
DATE: 01/26/2012
DATE: January 26, 2012
In Re:
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Applicant for Security Clearance
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ISCR Case No. 09-00266
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Roderic G. Steakley, Esq.
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The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On July 7, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the
basis for that decision—security concerns raised under Guideline E (Personal Conduct) of
Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant
requested a hearing.  On October 26, 2011, after the hearing, Administrative Judge James F. Duffy
denied Applicant’s request for a security clearance.  Applicant timely appealed pursuant to the
Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raises the following issues on appeal: whether the Judge’s conclusion that
Applicant deliberately falsified an answer on his security clearance application was erroneous, and
whether the Judge also erred by concluding that Applicant had not mitigated the security concerns
brought on by his answer to the security clearance application.  For the following reasons, the Board
affirms the Judge’s unfavorable security clearance decision. 
The Judge made the following findings of fact:  Applicant is 50 years old and has a
bachelor’s and a master’s degree.  He has worked in the defense industry for about 20 years and, for
most of that employment,  has held a security clearance without committing any security violations.
Applicant worked for Company A from June 2003 to June 2005.  After resigning from that job, he
began working for Company B in September 2005.  While working for Company B, he became the
subject of a Federal Bureau of Investigation (FBI) investigation, which involved his handling of
work-related materials while employed by Company A.  In his Answer to the SOR, Applicant
related the following: (a) that the FBI visited him at his home in February 2006; (b) the FBI was
investigating claims made by Company A that he had taken certain confidential, proprietary and
trade secret information upon resignation from Company A; (c) the same day, Applicant advised his
manager at Company B about what had happened with the FBI; (d) Applicant remembered being
placed on administrative leave at that time, and believes that he received a letter from Company B
shortly thereafter indicating that Company B and he should “go our separate ways”; (e) Applicant
received this letter while the FBI investigation was ongoing; (f) he was eventually exonerated of any
wrongdoing relating to the FBI investigation.  
At the hearing, Applicant testified that Company B immediately placed him on
administrative leave for a couple of days after he notified the company of the FBI investigation.
Immediately following the administrative leave, he was presented with an employment termination
letter.  The termination letter, dated February 3, 2006 stated, “We appreciate your contributions and
service during the time you have spent with [Company B].  Confirming your discussion with [your
supervisor], your employment with the firm is being terminated due to lack of appropriate work
matching your skills and abilities.  We regret that we are unable to avoid this result.”  An OPM ROI
indicates that Applicant’s employment with Company B was terminated because there was no
billable work and was not the result of any problems or issues related to Applicant.  Applicant
testified that before receiving the termination letter, his supervisor advised him the reason for his
termination was the same as that stated in the termination letter.  Applicant specifically stated that
he was never informed that he was being terminated because of the ongoing FBI investigation.  
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Applicant signed a security clearance application on March 6, 2008.  Applicant listed his
employment with Company B in Section 11 (Your Employment Activities), and submitted the
following additional comments: “I joined [Company B] in summer of 2005 to work on the GMD
[ground missile defense] program.  I left this position by Apr 2006 for personal reasons.  My
departure was by mutual agreement with the company.”  In Section 22 (Your Employment Record),
he was asked whether any of the following had happened to him in the past 7 years: (1) fired from
a job; (2) quit a job after being told you’d be fired; (3) left a job by mutual agreement following
allegations of misconduct; (4) left a job by mutual agreement following allegations of unsatisfactory
performance; and (5) left a job for other reasons under unfavorable circumstances.  Applicant
answered “no” to that question and submitted the following additional comments: “I left (resigned)
[Company A] in 2005 to start work with [Company B].  I left [Company B] in 2006 (by mutual
agreement) for personal reasons.  None of the above apply.”  At the hearing, Applicant testified that
he responded “no” to Section 22 because none of the five situations in that question applied to him.
Specifically, he interpreted the word “fired” to have a negative connotation.  He did not believe he
was fired.  He also testified that, in retrospect, he should have indicated he was fired because he was
terminated from his job.  He also stated that he did not leave his job with Company B for personal
reasons or as a result of mutual agreement.  Applicant indicated his additional comments in Section
11 were not stated well, and his additional comments in Section 22 about leaving Company B by
mutual agreement for a personal reason was a misstatement.  
Overall, Applicant is not a credible witness.  During his testimony, he was asked if he
thought the termination of his employment with Company B was because the FBI was investigating
him.  It was pointed out to him that he was placed on administrative leave for a couple of days
immediately following his report of the investigation and was terminated immediately following the
administrative leave.  Nonetheless, he testified that he did not believe these events were connected.
Applicant’s claim is contradicted by statements he made in responding to interrogatories and in his
Answer to the SOR.    In responding to the interrogatories, he stated: “I still believe (now 2010) that
it was fundamentally unfair to terminate my employment while I volunteered all information and
no one had any information at the time regarding the FBI investigation.”  In his Answer, Applicant
stated, “It is my understanding that [Company B] and I were simply going our separate ways based
on allegations which I believed to be at the time and which were ultimately proved to be baseless.”
Such statements show that he believed there was a connection between the FBI investigation and
his termination.  The FBI eventually informed Applicant that there was no indication that he
engaged in any impropriety.
The Judge reached the following conclusions: For a finding of falsification to be sustainable,
an applicant must have had a culpable state of mind at the time the information was submitted.  A
falsification must be made deliberately–knowingly and willfully.  An administrative judge must
consider the record evidence as a whole to determine whether there is direct or circumstantial
evidence that an applicant had a culpable state of mind at the time of the submission.  Based on the
circumstances surrounding his termination, Applicant’s interpretation of the question in Section 22
and its subparts was not unreasonable.  Applicant did not deliberately falsify his security clearance
by checking the “no” block in Section 22.  However, in responding to section 22, Applicant did
more than check the “no” block.  He provided additional comments that were false and misleading.
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He did not leave his employment with Company B by mutual agreement or for personal reasons.
When he made those additional comments, he knew that Company B terminated his employment
and that he had no input in that decision.  He provided deliberate false statements in both Section
22 and Section 11.  Sufficient circumstantial evidence exists to establish that Applicant believed
Company B terminated his employment, in whole or part, because the FBI was investigating whether
he took proprietary and trade secret information from a former employer.  Applicant’s statements
that he did not believe there was a connection between his reporting of the FBI investigation and his
termination are not credible.  Throughout the security clearance adjudicative process, Applicant
denied that he falsified his security clearance application.  He has not accepted responsibility for his
misconduct.  None of the mitigating conditions apply to the security concerns arising under
Guideline E.  Applicant has worked in the defense industry for about 20 years and held a security
clearance for most of that time.  Nevertheless, his deliberate false statements are serious, recent, and
not mitigated.
   Applicant argues that the Judge’s conclusions were inappropriately based on speculation
as opposed to appropriate circumstantial evidence and were not supported by the record.  He asserts
that the evidence does not support a conclusion that Applicant attempted to deliberately mislead
when he provided answers related to his past employments on the security clearance application.
Applicant states that the Judge erroneously believed, based on highly speculative, circumstantial
evidence, that Applicant’s termination from Company B was related to the FBI purportedly
investigating him, and that this conclusion permeates the entire decision.  Regarding mitigation,
Applicant argues that the great weight of the evidence established that he has not engaged in actions
which ultimately should be determined to compromise his reliability, trustworthiness, and judgment.
He asserts that his life-long conduct weighs most heavily in favor of granting the security clearance,
as the incident in question is the only time and matter concerning which he has ever been
questioned, and this does not involve an actual security breach or misconduct with regard to
classified information.  Applicant has failed to establish error on the part of the Judge.  After a
review of the entire record, the Board concludes that the Judge’s finding that Applicant engaged in
deliberate falsification is sustainable. 
The Appeal Board’s review of the Judge’s findings of fact is limited to determining if they
are supported by substantial evidence–“such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion in light of all the contrary evidence in the same record.”
Directive ¶ E3.1.32.1.  “This is something less that the weight of the evidence, and the possibility
of drawing two inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.”  Consolo v. Federal Maritime
Comm’n, 383 U.S. 607, 620 (1966).  In evaluating the Judge’s findings, we defer to the Judge’s
credibility determinations.  Directive ¶ E3.1.32.1.
Given the fact that Applicant denied willful falsification of his responses on his security
clearance application, the Judge, by necessity, relied on circumstantial evidence to make findings
of fact regarding Applicant’s state of mind at the time he provided answers and explanations about
his prior employment.  There was sufficient evidence to support the Judge’s finding and conclusion
that Applicant was not truthful.  Among the facts explicitly discussed and considered by the Judge,
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were: (a) the proximity in time between the point at which Applicant informed Company B of the
FBI investigation and the placing of Applicant on administrative leave (a step the necessity of which
is unclear if Applicant were being terminated for mere lack of work appropriate to Applicant’s skills
and abilities) and the ultimate termination of Applicant; (b) Applicant’s testimony at the hearing that
his answers in Sections 11 and 22 of the application were “misstated,” and that he should have
indicated that he was fired; (c) Applicant’s statement in response to interrogatories that when
describing the FBI investigation and insisting that it had no basis to Company B, he felt he should
be believed, but Company B thought otherwise; (d) Applicant’s statement in response to
interrogatories that Company B and he agreed to go their own ways, but he would not resign and
was therefore terminated; (e) Applicant’s statement in response to interrogatories that he believed
that it was fundamentally unfair for Company B to terminate his employment when he had
volunteered all information concerning a pending FBI investigation; and (f) Applicant’s statement
in response to interrogatories that Company B should have let him continue to work normally
pending the outcome of the FBI investigation.  These facts provide a reasonable basis for the Judge
to conclude that Applicant believed Company B terminated his employment because the FBI was
investigating whether he mishandled proprietary information.  The facts also provide a reasonable
basis for the Judge to conclude that Applicant’s later statement that he did not believe there was a
connection between his reporting of the FBI investigation, and his statement that he left Company
B by mutual agreement for personal reasons were not credible.  These conclusions support the
Judge’s ultimate conclusion that the information Applicant provided on his security clearance
application was false and was the product of a deliberate intent to conceal.  Applicant’s assertion
that the Judge engaged in improper speculation in reaching his findings and conclusions is without
merit.
The Judge based his findings and conclusions, in part, upon an unfavorable assessment of
Applicant’s credibility.  Given the inconsistencies in Applicant’s description of events that have
developed over time, the Judge’s credibility determination is sustainable.
Applicant also argues that the overall record demanded the favorable application of
numerous mitigating conditions.  As the trier of fact, the Judge has to weigh the evidence as a whole
and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa.  See,
e.g., ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007).  In this case, the Judge weighed the
mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct and
considered the possible application of relevant conditions and factors.  He adequately discussed why
the disqualifying conduct established under Guideline E was not mitigated.  Notwithstanding
Applicant’s long and successful career and his unblemished track record regarding the handling of
classified information, the Judge reasonably concluded that Applicant’s failure to accept
responsibility for his falsification misconduct perpetuates doubts about his trustworthiness and
reliability and his current willingness to comply with laws, rules, and regulations. 
The Board does not review a case de novo.  The favorable evidence cited by Applicant is not
sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law.  See, e.g.,
ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007).  After reviewing the record, the Board
concludes that the Judge examined the relevant data and articulated a satisfactory explanation for
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his decision, “including a ‘rational connection between the facts found and the choice made.’” Motor
Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).  “The general
standard is that a clearance may be granted only when ‘clearly consistent with the interests of the
national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).  Therefore, the
Judge’s ultimate unfavorable security clearance decision is sustainable.
Order
The decision of the Judge denying Applicant a security clearance is AFFIRMED.
Signed: Jeffrey D. Billett         
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: Jean E. Smallin             
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: James E. Moody            
James E. Moody
Administrative Judge
Member, Appeal Board