KEYWORD: Guideline F; Guideline E
DIGEST: It was well within the Judge’s discretion to find Applicant’s explanation to be lacking
in credibility. We give deference to a Judge’s credibility determination. Adverse decision
affirmed.
CASENO: 14-04198.a1
DATE: 04/26/2017
DATE: April 26, 2017
In Re:
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Applicant for Security Clearance
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ISCR Case No. 14-04198
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Gary W. Wood, Esq.
The Department of Defense (DoD) declined to grant Applicant a security clearance.  On May
29, 2015, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that
decision–security concerns raised under Guideline F (Financial Considerations) and Guideline E
(Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended)
(Directive).  Applicant requested a hearing.  On February 6, 2017, after the hearing, Defense Office
of Hearings and Appeals (DOHA) Administrative Judge Claude Heiny denied Applicant’s request
for a security clearance.  Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raised the following issues on appeal: whether the Judge erred in finding that his
omission from his security clearance application (SCA) was deliberate and whether the Judge failed
to make findings or provide analysis for one of the allegations in the SOR.  The Judge’s favorable
findings under Guideline F are not at issue in this appeal.  Consistent with the following, we affirm.
  
The Judge’s Findings of Fact  
The Judge made the following findings pertinent to the issues raised on appeal:  In March
2009, Applicant was arrested for DUI.  The following year, he was found guilty and sentenced to
one year of supervised probation, 60 days confinement ( suspended), and attendance at a substance
abuse class, among other things.  After completion of Applicant’s probation, the court issued a
Judgement of Dismissal setting aside the conviction, which had the same effect as an acquittal.  
When he completed his SCA, Applicant failed to disclose his arrest for DUI.  During his
clearance interview, he initially claimed that he had not been arrested, convicted, or sentenced
within the previous seven years.  When confronted with his DUI, he stated that he did not list it on
his SCA or during the early part of the interview because he did not have all the details regarding
the offense.  
The Judge’s Analysis
The Judge entered favorable findings under the Guideline F allegations.  Concerning
Applicant’s failure to have disclosed his DUI arrest, the Judge stated that the omission was
deliberate.  He concluded that none of the mitigating conditions were entitled to full application,
stating that Applicant made no attempt to correct the error before being confronted with the facts. 
In the whole-person analysis, the Judge cited to evidence that Applicant meets or exceeds his
performance goals at work, that he served in the military, and that he has a reputation for being a
hard worker.  However, he concluded that the record did not support a favorable conclusion
regarding the DUI omission.
Discussion
Applicant claims that the Judge erred in finding that his omission was deliberate.  He argues
that he believed that the dismissal and expungement of his case excused his failure to report.  When
evaluating the deliberate nature of an applicant’s omissions or false statements, a Judge should
consider the applicant’s mens rea in light of the entirety of the record evidence.  See, e.g., ISCR
Case No. 14-04226 at 3 (App. Bd. Aug. 18, 2015).  
The SCA prefaced the question at issue with a warning that arrests and convictions must be
disclosed even if the conviction had been dismissed or expunged. Government Exhibit 1, SCA, at
35.  This language was clear and prominently displayed, thereby diminishing the likelihood that it
might be overlooked.  Moreover, in his interview, Applicant relied on his contention that he did not
have enough information about the offense rather than expungement, which was not consistent with
his claim on appeal.  It was well within the Judge’s discretion to find Applicant’s explanation to be
lacking in credibility.  We give deference to a Judge’s credibility determination.  Directive ¶
E3.1.32.1.  Given the clarity of the question and the inconsistencies in Applicant’s explanations, we
conclude that the challenged finding is supportable.
Applicant contends that the Judge made no findings and provided no analysis for one of the
SOR allegations.  This allegation, ¶ 2c, stated that Applicant had failed to disclose that his alcohol
use had resulted in police intervention and that he had been required to complete a substance abuse
program.  We agree that the Judge did not make a finding about Applicant’s alleged failure to have
disclosed police intervention.  He did make a finding about Applicant’s substance abuse course,
although he appears to have concluded that Applicant’s omission of this matter was not objectively
false.  He did not discuss either of these matters in the Analysis portion of the Decision. 
Accordingly, the Judge’s findings and analysis regarding the allegation at ¶ 2c do not support his
ultimate adverse conclusion for this allegation.  However, because the overall decision is
independently sustainable based on the DUI omission, we conclude that this error is harmless.  See,
e.g., ISCR Case No. 15-00535 at 3 (App. Bd. Mar. 13, 2017).   
The Judge examined the relevant evidence 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 Ra’anan             
Michael Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: James E. Moody                                     
James E. Moody
Administrative Judge
Member, Appeal Board
Signed: James F. Duffy                
James F. Duffy
Administrative Judge
Member, Appeal Board