KEYWORD: Guideline E; Guideline D; Guideline M
DIGEST: In examining an applicant’s intent concerning allegations of false statements, the
conduct must be evaluated in light of the entire record.  The Appeal Board evaluates a Judge’s
rulings on evidence to see if they are arbitrary, capricious, or contrary to law.  Applicant was not
denied due process.  Adverse decision affirmed.  
CASE NO: 12-02296.a1
DATE: 03/12/2014
DATE: March 12, 2014
In Re:
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Applicant for Security Clearance
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ISCR Case No. 12-02296
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro se
The Department of Defense (DoD) declined to grant Applicant a security clearance.  On June
19, 2013, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that
decision–security concerns raised under Guideline E (Personal Conduct), Guideline D (Sexual
Behavior), and Guideline M (Use of Information Technology Systems)  of Department of Defense
Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested a hearing.  On January
3, 2014, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge
John Grattan Metz, Jr., denied Applicant’s request for a security clearance.  Applicant appealed
pursuant to Directive ¶¶ E3.1.28 and E3.1.30.
2
Applicant raised the following issues on appeal: whether the Judge’s findings of fact
contained errors; whether the Judge erred in admitting a pieces of Government evidence; and
whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law.  The Judge’s
favorable findings under Guidelines D and M are not at issue in this appeal.  Consistent with the
following, we affirm. 
The Judge’s Findings of Fact  
Applicant is a consultant for a Defense contractor.  He was first granted a clearance in 2001.
In 2011, he lost a clearance because a previous employer fired him.  The reason for the job
termination was Applicant’s having spent excessive amounts of time on the internet for non-business
purposes, including examining pornographic web sites.  He charged his time spent on this non-
business activity to Government contracts.  He had been counseled on numerous occasions
concerning the viewing of inappropriate material using company computer systems.
In September 2011, Applicant completed a security clearance application (SCA) in
conjunction with his current employment.  In this document, Applicant failed to disclose that he had
been fired from his previous job.  He affirmatively misrepresented the circumstances by stating that
he had left the company due to “loss of contract/work.”  Decision at 2, quoting Government Exhibit
(GE) 1, SCA, at 10-11.  Later, he gave conflicting explanations during a clearance interview, stating
that he did not list his termination due to an oversight and, conversely, that he had failed to do so
because of lack of work at the previous employer.
Applicant enjoys a good reputation for his honesty and trustworthiness.  However, only one
of his character references appears to have been aware of the reasons Applicant was fired.
The Judge’s Analysis
The Judge concluded that the circumstances underlying Applicant’s job loss and his
deliberate falsification of his SCA raised concerns under Guideline E.  He stated that Applicant’s
on-the-job infractions constituted a breach of the fiduciary duty he owed his employer.  The Judge
also stated that Applicant’s failure to provide the Government with information that was material
to a proper adjudication of his clearance suggests that he may be willing to put his own interests
ahead of the legitimate interests of the Government.  His falsification raises a reasonable concern
that he might fail to report other security-significant information in the future.
Discussion
Applicant denies that he deliberately omitted the information from his SCA.  He states that
his omission was inadvertent.  We examine a Judge’s findings of fact to see if they are supported
by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion
in light of all the contrary evidence in the record.”  In analyzing an applicant’s mens rea, a Judge
must consider the applicant’s answers in light of the entire record.  See, e.g., ISCR Case No. 12-
12172 at 3 (App. Bd. Jan. 9, 2014). 
3
In his reply to the SOR, Applicant admitted that he had “falsified material facts” in his SCA.
He stated that he had been told by officials working for his employer that he had visited computer
sites of a “questionable nature,” which was grounds for dismissal.  GE 3, a letter to Applicant from
his employer entitled Termination of Employment, stated that he had “spent an excessive amount
of hours . . . on non-company business on the internet, including accessing pornographic websites,
and charged [his] time to [G]overnment contracts.”  In addition, Applicant Exhibit (AE) B, a portion
of the ROI in this case, includes a summary of Applicant’s clearance interview.  The summary
depicts Applicant as stating the following: 
There was a six month period prior to [Applicant] being let go that he was browsing
the internet for personal use a lot because there was no work for him to do.  The last
month or two he started visiting the adult pornographic pictures on Facebook.
[Applicant’s] director . . . a section head . . . and [a] human resource representative
. . . called [Applicant] into an office and [he] was informed by the HR rep that he was
being let go due to excessive personal use of the computer including visiting adult
pornographic sites. [Applicant] does not recall any other reasons as to why he was
terminated.   AE B at p. 5.
The evidence demonstrates that Applicant was aware that he had been terminated because he used
a company computer for personal reasons unrelated to business, including visiting pornographic web
sites. Under the circumstances, a reasonable person could conclude that he omitted this incident
from his SCA not due to simple oversight or honest mistake but because he did not want it to
become more generally known.  The evidence viewed as a whole supports the finding that
Applicant’s omission was knowing and deliberate.  The Judge’s material findings of security
concern are sustainable.  
Applicant challenges the Judge’s decision to admit GE 2, a JPAS entry, contending that it
is not factually correct.  We evaluate a Judge’s rulings on evidence to see if they were arbitrary,
capricious, or contrary to law.  See, e.g., ISCR Case No. 10-08390 at 3 (App. Bd. Mar. 30, 2012).
Assuming without deciding that the Judge erred in relying on the exhibit as the basis for a finding
in the face of substantial contrary record evidence, such error was ultimately harmless.  
Applicant states that he was not aware that his character references should have demonstrated
knowledge of why he was fired.  He notes that he was not represented by counsel.  In making this
argument he asserts matters from outside the record, which we cannot consider.  Directive ¶ E3.1.29.
To the extent that Applicant is raising an issue of due process, prior to the hearing he received a
letter from the Chief Administrative Judge advising him of his right to hire an attorney or to utilize
the services of a personal representative, as well as his right to present evidence, question witnesses,
etc.  At the beginning of the hearing, the Judge apprised Applicant of his right to representation and
described in detail the procedures governing the hearing.  Tr. at 6-8; 12-18.  Applicant presented
documentary evidence, which the Judge admitted.   Tr. at 25.  There is nothing in the record that
would prompt a reasonable person to question Applicant’s ability to understand the proceedings or
to represent himself.  See, e.g., ISCR Case No. 12-00120 at 3-4 (App. Bd. Feb. 10, 2014).  There is
no reason to conclude that Applicant was denied the due process afforded by the Directive.  
4
The Judge examined the relevant data and articulated a satisfactory explanation for the
decision.  The decision is sustainable on this record.  “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).  See also Directive, Enclosure 2 ¶ 2(b):  “Any doubt
concerning personnel being considered for access to classified information will be resolved in favor
of the national security.”
Order
The Decision is AFFIRMED.
Signed: Michael Y. Ra’anan             
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: Jeffrey D. Billett                   
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: James E. Moody                  
James E. Moody
Administrative Judge
Member, Appeal Board