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ISCR Case 17-02612.a1 — CASE

ISCR Case 17-02612.a1denied

Case Headnote

ISCR Case No. 17-02612.a1

Apr 25, 2019· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance due to serious misconduct under Guidelines E (Personal Conduct), K (Handling Protected Information), and M (Use of Information Technology). The applicant's actions included intentionally falsifying time cards and installing unauthorized software. These actions were deemed unauthorized and significant, occurring within two and a half years prior to the hearing.

The denial was further supported by the applicant's apparent lack of remorse for the misconduct. The judge's credibility determinations, which found the applicant's claims lacked corroboration, were upheld on appeal.

Ultimately, the appeal affirmed the denial of the security clearance, based on the nature of the infractions and the judge's assessment of the applicant's credibility and lack of remorse.

Conditions Referenced

Disqualifying

AG EraisedPersonal Conduct
AG KraisedHandling Protected Information
AG MraisedUse of Information Technology

Key Rule Quoted

“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)

Procedural Posture

SOR issuedDec 1, 2017
Answer filed—
Hearing heldFeb 11, 2019
Decision dateApr 25, 2019

Cite For

Intentional Misconduct Under Guideline E
Lack of Remorse as a Factor in Security Clearance Denial
Deference to Judge's Credibility Determinations in Security Clearance Cases

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Affirmed

The appeal involved an applicant who was denied a security clearance due to concerns under Guidelines E, K, and M. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and not contrary to law.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRichard A. Cefola — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline KGuideline M

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the Judge's credibility determinations were entitled to deference. The Board concluded that the Judge's decision was not arbitrary, capricious, or contrary to law.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan — Chair
James E. Moody
James F. Duffy

Descriptive structured reading of this decided, public Appeal Board decision — what the case says, not a prediction or advice.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

KEYWORD: Guideline E; Guideline K; Guideline M DIGEST: We give deference to a Judge’s credibility determination. Directive ¶ E3.1.32.1. The evidence, which includes his prior employer’s written summary of the things that led to his firing, support the challenged finding. Indeed, the number of infractions suggest that they were not merely inadvertent or negligent. We have noted before that multiple false statements support a finding of intentional misbehavior. Adverse decision affirmed. CASENO: 17-02612.a1 DATE: 04/25/2019 DATE: April 25, 2019 In Re: ----------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 17-02612

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On December 1, 2017, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline E (Personal Conduct), Guideline M (Use of Information Technology), and Guideline K (Handling Protected Information) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 11, 2019, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Richard A. Cefola denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact and Analysis Applicant was terminated from a previous employment. The reasons for this termination were that he installed unauthorized software on his work computer; created five “administrative accounts,” some in the names of co-workers, on a classified system without obtaining approval; and falsified his time card over a seven-day period, during which he spent the majority of his time on non-work related activities. Applicant claimed that he did not know that the software he installed was not authorized and that he had authority to create the administrative accounts. He did not corroborate these assertions. Applicant submitted five letters of support, but none of them shed light upon his misconduct. The Judge stated that Applicant’s security-significant conduct was intentional, unauthorized, and occurred within two and a half years prior to the hearing. He noted Applicant’s falsified time cards and other misconduct, stating that he showed little or no remorse. Though noting evidence that Applicant is well-respected in his current job, he found that the record left him with questions and doubts about Applicant’s eligibility for access to classified information.

DISCUSSION

Applicant contends that the Judge did not consider, or that he mis-weighed, favorable record evidence, such as his claim that he had approval for some of his conduct and that his conduct occurred over two years prior to the hearing. He argues that his infractions were relatively minor and that he had not been properly trained. Applicant takes exception to the Judge’s comments that he had acted intentionally and that he lacked remorse, thereby challenging the Judge’s adverse credibility determination. On this last point, we give deference to a Judge’s credibility determination. Directive ¶ E3.1.32.1. The evidence, which includes his prior employer’s written summary of the things that led to his firing, support the challenged finding. Indeed, the number of infractions suggest that they were not merely inadvertent or negligent. See, e.g., ISCR Case No. 15- 08163 at 5 (App. Bd. Oct. 25, 2017) (Multiple false statements support a finding of intentional misbehavior). Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record, nor has he shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 17-04198 at 2 (App. Bd. Jan. 15, 2019). We give due consideration to the Hearing Office case that Applicant has cited. However, Hearing Office cases are not binding on other Hearing Office Judges or on the Appeal Board. Each case must be adjudicated on its own merits. The cited case does not provide a reason to conclude that the Judge erred in his analysis or conclusions. See, e.g., ISCR Case No. 17-03363 at 3 (App. Bd. Nov. 29, 2018). 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, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board