A decided public DOHA case, shown for research, not advice or a prediction.
ISCR Case No. 20-01207
Appeal BoardDecided Nov 15, 2021 · Administrative Judge Michael Y. Ra'anan · Appeal
Case headnote
Summary
The applicant, representing herself, sought a security clearance under Guideline E concerning personal conduct after being fired for distributing prescription medications at work. The appeal was denied as the applicant did not challenge the judge's findings and failed to demonstrate any harmful error in the decision, leading the Appeal Board to affirm the adverse ruling.
Why the applicant was denied
- The applicant did not challenge any of the Judge’s findings of fact.
- The applicant failed to demonstrate that the Judge committed any harmful error in the decision.
Conditions referenced
Disqualifying
- E2 Personal Conductraised
Key rule quoted
“The general standard is that a clearance may be granted only when ‘clearly consistent with national security.’”
Procedural posture
- SOR issued
- 2020-08-24
- Answer filed
- Hearing held
- 2021-08-26 Decision on the written record.
- Decision date
- 2021-11-15 Appeal decision.
Cite for
- Affirmation of Adverse Decisions Based on Personal Conduct Under Guideline E
- Importance of Challenging Findings of Fact in Appeals
- Limitations on New Evidence During Appeal Process
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
The appeal concerned the denial of a security clearance based on allegations of personal conduct under Guideline E. The applicant did not challenge the Judge's findings of fact but argued the circumstances of her conduct. The Board affirmed the decision, finding no harmful error in the Judge's analysis.
Descriptive structured reading of this decided, public Appeal Board decision: what the case says, not a prediction or advice.
Full decision
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Decision text, by section
Synopsis
_______________________________________________ ) In the matter of: )
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ISCR Case No. 20-01207
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) Applicant for Security Clearance ) _______________________________________) DEPARTMENT OF DEFENSE DEFENSE LEGAL SERVICES AGENCY DEFENSE OFFICE OF HEARINGS AND APPEALS APPEAL BOARD POST OFFICE BOX 3656 ARLINGTON, VIRGINIA 22203 (703) 696-4759 KEYWORD: Guideline E DIGEST: Applicant’s appeal brief contains assertions and documents that were not presented to the Judge for consideration. The Appeal Board is prohibited from considering new evidence on appeal. Directive ¶ E3.1.29. Adverse Decision is Affirmed CASE NO: 20-01207.a1 DATE: 11/15/2021 Date: November 15, 2021
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 August 24, 2020, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that
decision―security concerns raised under Guideline E (Personal Conduct) of DoD Directive 5220.6 (January 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On August 26, 2021, after considering the record, 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. The SOR alleged that Applicant was fired from employment in 2018 for distributing prescription medications to a fellow employee and for using the employer’s computing resources in order to distribute those controlled substances. The Judge found against Applicant on the sole Guideline E allegation. Applicant’s appeal brief contains assertions and documents that were not presented to the Judge for consideration. The Appeal Board is prohibited from considering new evidence on appeal. Directive ¶ E3.1.29. Applicant does not challenge any of the Judge’s findings of fact. Rather, she explains the circumstances surrounding the alleged conduct. She does not dispute that she transferred prescription medications to the fellow employee but essentially argues she was not involved in selling drugs. She has failed to demonstrate the Judge’s analysis or conclusions were arbitrary, capricious, or contrary to law. Directive ¶ E3.1.32.3. Applicant has failed to establish that 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 the record. “The general standard is that a clearance may be granted only when ‘clearly consistent with 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 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