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ISCR Case 18-00827.a1 — CASE

ISCR Case 18-00827.a1denied

Case Headnote

ISCR Case No. 18-00827.a1

Mar 12, 2019· Hon. Michael Y. Ra'anan· appeal

Summary

A 39-year-old defense contractor employee with a doctorate was denied a security clearance under Guideline E (Personal Conduct) and Guideline M (Use of Information Technology). The denial stemmed from his unauthorized use of a key-logging device to capture passwords. This action repeatedly violated IT security procedures and was deemed a serious breach of trust, reflecting poor judgment and placing the employer's IT systems at risk.

The applicant claimed his actions were intended to improve organizational efficiency; however, this explanation was rejected as self-serving and not credible. The appeal board affirmed the denial, citing the serious nature of the breaches and the poor judgment demonstrated.

Ultimately, no mitigating factors were found sufficient to overturn the initial decision, and the security clearance was denied.

Conditions Referenced

Disqualifying

AG E2raisedPersonal Conduct
AG M2raisedUse 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 issuedMay 16, 2018
Answer filed—
Hearing heldNov 15, 2018
Decision dateMar 12, 2019

Cite For

Serious Breach of Trust Under Guideline E
Unauthorized Use of IT Systems Under Guideline M
Insufficient Mitigating Factors 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 a denial of a security clearance based on security concerns under Guideline M and Guideline E. The Applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful error in the Judge's ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEric H. Borgstrom — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline M

What the Board reviewed

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

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for the denial of the security clearance. The Applicant's arguments did not demonstrate that the Judge's conclusions were arbitrary or capricious.

Standard of review applied

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

Appeal Board panel

Michael Ra’anan — Chair
James F. Duffy
Charles C. Hale

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 M DIGEST: In deceiving IT personnel to capture the password and using it without authorization, Applicant repeatedly violated IT security procedures. This put his former employer’s IT systems at risk. While he contends he acted in the interest of organizational efficiency, he did so for his own convenience. Adverse decision affirmed. CASENO: 18-00827.a1 DATE: 03/12/2019 DATE: March 12, 2019 In Re: -------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 18-00827

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 May 16, 2018, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline M (Use of Information Technology) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 15, 2018, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Eric H. Borgstrom 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 decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact and Analysis Applicant is a 39-year-old employee of a defense contractor. He is married with two children and has earned a doctorate degree. For over three years, Applicant worked in a laboratory. To install hardware or software on his lab computers, he was required to have IT personnel input a password in the computer, and he found these procedure overly protracted. In 2012, he acquired a key-logging device to capture the password surreptitiously. He did not scan the device for viruses or other corruption software. He later captured the password from an IT representative without his or her knowledge. Applicant subsequently used the stolen password on about 12 occasions to install hardware and software onto the lab computer without authorization. Applicant explained that he circumvented the security procedures in the interest of organizational efficiency. He did not share the password with anyone or install any hardware or software that would have been prohibited. He never received any security training, although he was aware of the procedures for installing hardware or software. He never informed his employer of his use of the key-logging device. He disclosed its use on his 2012 security clearance application (SCA). Applicant is well regarded by his supervisors, coworkers, and friends. He did not disclose his misconduct to his former employer due to embarrassment. He sincerely regrets his misconduct, but characterizes it as minor.

In deceiving IT personnel to capture the password and using it without authorization, Applicant repeatedly violated IT security procedures. This put his former employer’s IT systems at risk. While he contends he acted in the interest of organizational efficiency, he did so for his own convenience. “If his actions were done in the name of organizational efficiency, he would not have acted surreptitiously or felt the need to continue to conceal his past misconduct from his former and current employer. His ongoing concealment of his actions continues his former employer’s exposure to malware, viruses, etc. Applicant’s conduct constituted a serious breach of trust and reflected poor judgment.” Decision at 4-5.

DISCUSSION

In his appeal brief, Applicant argues the Judge did not fairly weigh the evidence. For example, he contends he had no security training at the time of the alleged conduct; he did not knowingly or intentionally put the former employer’s IT system at risk; he engaged in the conduct so that he could do his job more effectively and efficiently; his concealment of the conduct from his former employer did not invalidate his motive; his conduct was minor and, to his knowledge, never harmed the computer system; and he disclosed the conduct on his SCA. He also contends the Judge inadequately applied the whole-person concept by ignoring evidence of his good judgment and character. However, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. A party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15-08684 at 2 (App. Bd. Nov. 22, 2017). Applicant has failed to establish the Judge committed any harmful error. 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 Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board Signed: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board