KEYWORD: Guideline B; Guideline E
DIGEST: Judge’s finding that Applicant’s omissions were deliberate was supported by
substantial evidence.  Hearing Office cases are not binding on other Hearing Office Judges or on
the Appeal Board.  The Judge’s whole-person analysis complied with the requirements of the
Directive.  On cross-appeal, Applicant’s settlement agreement between himself and his agency,
with subsequent termination of adverse action, was not sufficient to demonstrate that the
allegations underlying the adverse action were unfounded.  The Judge erred in concluding that
the Government failed to meet its burden of production regarding an allegation that Applicant
doctored a certain e-mail.  However, given the voluminous record and possible failure of the
Government clearly to identify the document, the Judge probably simply overlooked the
document.  Adverse decision affirmed.
CASE NO: 12-05232.a2
DATE: 06/30/2014
DATE: June 30, 2014
In Re:
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Applicant for Security Clearance
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ISCR Case No. 12-05232
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
John Bayard Glendon, Esq., Deputy Chief Department Counsel
FOR APPLICANT
Cathryn E. Young, Esq.
The Department of Defense (DoD) declined to grant Applicant a security clearance.  On
September 11, 2012, DoD issued a statement of reasons (SOR) advising Applicant of the basis for
that decision–security concerns raised under Guideline B (Foreign Influence) and Guideline E
(Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended)
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(Directive).  DOHA amended the SOR on February 21, 2013, and again on August 12, 2013. 
Applicant requested a hearing.  On November 8, 2013, after the hearing, Defense Office of Hearings
and Appeals (DOHA) Administrative Judge Marc E. Curry denied Applicant’s request for a security
clearance.  Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30.  On February 10, 2014,
the Appeal Board remanded the case to the Judge for further processing.  On March 12, 2014, the
Judge issued a Remand Decision.  Applicant again appealed pursuant to the Directive.  Department
Counsel cross-appealed pursuant to Directive ¶ E3.1.28.  
Applicant raised the following issues on appeal: whether the Judge erred in finding that
certain omissions during Applicant’s clearance interview were deliberate and whether the Judge’s
adverse decision was arbitrary, capricious, or contrary to law.  Department Counsel raised the
following issue on cross-appeal: whether the Judge erred by failing properly to analyze certain
Guideline E security concerns.  Consistent with the following, we affirm.
The Judge’s Findings of Fact
The Judge apparently incorporated his findings from the first Decision.  Although he does
not explicitly state that, we are construing his Decision that way.  Applicant was born and raised in
Afghanistan.  He came to the U.S. in the early 1990s and became a naturalized citizen in the late
1990s.  His mother is a citizen and resident of Afghanistan, with whom Applicant speaks “every two
or three months.”  Decision at 4.  He has several siblings who are citizens and residents of
Afghanistan.  He speaks with some of them about once every one to three months.  He has visited
Afghanistan three times in the last 10 years, the last occasion being a few years ago.  He has no
plans to return.
Afghanistan and the U.S. signed a strategic partnership, committing the U.S. to assisting
Afghanistan in rebuilding after decades of conflict.  The Taliban, Al Queda, and narcoterrorists
operate in Afghanistan.  There is an ongoing risk of kidnaping and assassination of U.S. citizens
throughout the country.  
Beginning in mid-2000s and for several years thereafter, Applicant worked for a Federal
agency.  He was placed on administrative leave for failing to work his prescribed schedule and for
improperly recording his time and attendance.  He denied the charges.  Eventually Applicant and
his employer settled the dispute.  The employer rescinded the removal letter and removed documents
regarding the proposed termination, and agreed to pay Applicant a sum of money.  In exchange,
Applicant resigned and did not pursue further legal action.
Applicant enjoyed an excellent reputation for the quality of his work.  He received a Superior
Accomplishment Award for his services to the Federal agency.
In 2011, Applicant was interviewed pursuant to his effort to obtain a clearance.  During his
interview, he did not disclose that he was on administrative leave.  A month later he was re-
interviewed.  When asked why he omitted the leave, he made inconsistent statements.  He said that
he did not think that the issues pertaining to the leave were relevant.  Later in the same interview
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he claimed that he had suppressed his employment problems from his memory.  At the hearing, he
characterized the suppression as “unconscious,” offering no further explanation.  Id. at 6.
The Judge’s Analysis
One of the Guideline E allegations concerned Applicant’s having falsified his time and
attendance cards.  The Judge cited to the settlement agreement, which he characterized as having
rescinded the allegations in exchange for Applicant’s agreement to forego potential claims.  The
Judge stated that, given Applicant’s good work record, his affirmative defense against his
employer’s allegations was made in good faith.  The Judge resolved this particular allegation in
Applicant’s favor.  The Judge also favorably resolved an allegation to the effect that Applicant had
provided a doctored e-mail in response to the SOR.  He stated that the Government had failed to
establish this allegation.
However, the Judge concluded that Applicant’s omission of his adverse action during his
clearance investigation was deliberate.  He noted Applicant’s inconsistent statements during the
subsequent interview and concluded that Applicant’s hearing testimony “was incredible and
evasive.”  Id. at 7.  He stated that none of the mitigating conditions applied to this matter.
In evaluating the allegations under Guideline B, the Judge noted that the risk of terrorism is
present in Afghanistan.  He stated that Applicant’s relatives created a heightened risk of foreign
exploitation or pressure.  In evaluating Applicant’s case for mitigation, the Judge stated that
Applicant was not credible, given evidence of his inconsistent statements.   As a consequence, he
stated that he could not accept as truthful Applicant’s evidence as to the extent of his contacts with
his foreign relatives, nor could he conclude that Applicant would resolve any conflict of interest in
favor of the U.S.
Discussion
Applicant’s Appeal
Applicant contends that the Judge erred in his finding that his omission during the interview
was deliberate.  In analyzing an applicant’s mens rea, a Judge must consider the applicant’s answers
in light of the record as a whole.  See, e.g., ISCR Case No. 12-12172 at 3 (App. Bd. Jan. 9, 2014).
In this case, the Judge’s treatment of this issue is supported by the record.  Applicant’s inconsistent
explanations for his omission could persuade a reasonable person that he was not truthful.  We defer
to a Judge’s credibility determinations.  Directive ¶ E3.1.32.1.  See also ISCR 10-06089 at 3 (App.
Bd. Sep. 11, 2013).  Moreover, a reasonable person could conclude that Applicant had a motive to
conceal the adverse action that was ongoing at the time of the interview, in that it might have had
an impact on his effort to get a clearance.  We find no reason to disturb the Judge’s finding about
the deliberate nature of Applicant’s omission.  
Applicant cites to other hearing office cases concerning Guideline B, which he believes
support his effort to obtain a clearance.  We have given these cases due consideration, as persuasive
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authority.   However, Hearing Office cases are not binding on other Hearing Office Judges or on the
Appeal Board.  See, e.g., ISCR Case No. 13-00464 at 3 (App. Bd. Feb. 20, 2014).  Applicant’s case
has some aspects that distinguish it from the ones he has cited in his brief, and, in any event, each
case must the judged on its own merits.  The cases cited by Applicant are not sufficient to show that
the Judge’s adverse decision under Guideline B was arbitrary, capricious, or contrary to law.  We
also conclude that the Judge did not err in considering Applicant’s inconsistent statements about his
omission in the context of evaluating the extent to which Applicant had shown mitigation under
Guideline B. 
Despite Applicant’s argument to the contrary, we conclude that the Judge’s whole-person
analysis complied with the requirements of the Directive, in that he considered Applicant’s
circumstances in light of the entirety of the record.  See, e.g., ISCR Case No. 11-13984 at 4 (App.
Bd. Feb. 20, 2014).  The Judge examined the relevant data and articulated a satisfactory explanation
for the decision.  The decision is sustainable on this record.  The presence of terrorist activity in a
foreign country is a significant factor in Guideline B cases.  See, e.g., ISCR Case No. 13-00375 at
3 (App. Bd. Mar. 28, 2104).  An applicant’s failure to provide truthful answers is “[o]f special
interest” in evaluating his or her fitness of a clearance.  Directive, Enclosure 2 ¶ 15.  “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.”
Cross-Appeal
Department Counsel argues that the Judge erred in his treatment of the settlement agreement.
He argues that settlement of the dispute was no reason to conclude that the dispute was groundless.
See, e.g., ISCR Case No. 09-08394 at 6 (App. Bd. Jan. 16, 2013).  
In the case before us, the record contains the letter from the agency outlining its reasons for
proposing Applicant’s removal from Federal Service.  Government Exhibit (GE) 6, Removal Letter,
dated April 13, 2011.  These reasons are 101 separate instances of Applicant’s failure to work his
prescribed schedule and 97 instances of his failure properly to record his time and attendance.  The
allegations are sufficiently specific as to times, dates, and circumstances that GE 6 could properly
be considered not only as evidence that Applicant’s employer proposed his termination but as
evidence of the infractions that formed the basis of that proposal.  While a Judge cannot be expected
to discuss each piece of evidence in a record, he or she should address “significant evidence that has
a material bearing on the case.”  ISCR Case No. 09-08394, supra, at 7.  The Judge’s failure to
discuss GE 6 in the context of the Guideline E disqualifying conditions impaired his analysis.  To
the extent that a reasonable person could believe that he treated the settlement agreement by itself
as evidence that the infractions were unfounded, without reference to contrary evidence, he erred.
However, any such error did not affect the overall outcome of the case and, therefore, was harmless.
Department Counsel argues that the Judge erred in concluding that the Government had
failed to meet its burden of production regarding the allegation of a doctored e-mail.  The allegation
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read as follows: “In your March 13, 2013, Answer to the Amendment to the Statement of Reasons,
you falsified material facts when you submitted a false document containing email correspondence
with altered text.”  We note that Department Counsel’s documents were identified with small
stickers, the last one designated 2-F.  The document cited by Department Counsel in support of this
allegation is in the file.  The absence of stickers after 2-F probably accounts for the Judge’s
conclusion.  Given the voluminous documentary evidence in this case and the multiple amendments
to the SOR, the Judge may simply have overlooked the cited document.  Any error in this regard is
harmless, however, because it did not likely affect the outcome of the case.
Order
The Decision is AFFIRMED. 
Signed: Michael Ra’anan           
Michael 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