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ISCR 20-01207: Guideline E security clearance appeal, denied (2021) · CASE

ISCR Case 20-01207denied

Case headnote

ISCR Case No. 20-01207

Nov 15, 2021· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing herself, was denied a security clearance under Guideline E (Personal Conduct) after being terminated from her employment for distributing prescription medications at work. The initial decision cited Disqualifying Condition E2.

The applicant appealed the denial but did not challenge any of the judge's findings of fact. Furthermore, she failed to demonstrate that the judge committed any harmful error in the decision-making process.

Consequently, the Appeal Board affirmed the adverse ruling, leading to the denial of the applicant's security clearance.

Conditions referenced

Disqualifying

E2raisedPersonal ConductThe applicant was fired for distributing prescription medications and using employer resources for this purpose.

Key rule quoted

“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)

Procedural posture

SOR issuedAug 24, 2020
Answer filed—
Hearing heldAug 26, 2021Decision on the written record.
Decision dateNov 15, 2021Appeal 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· Full written decision

Affirmed

The appeal was filed by the applicant after the Administrative Judge denied her request for a security clearance based on allegations under Guideline E. The applicant did not challenge the Judge's findings of fact but argued the circumstances of her conduct. The Appeal Board affirmed the decision, finding no harmful error in the Judge's analysis.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEric H. Borgstrom denied the clearance

Decided onthe written record

Guidelines belowGuideline E

What the Board reviewed

No specific harmful error alleged, raised by the applicantRejected
Applicant failed to establish that the Judge committed any harmful error.

Why the Board ruled this way

The Board found that the Judge's analysis and conclusions were not arbitrary, capricious, or contrary to law, and the decision was sustainable on the record.

Standard of review applied

No new evidence on appealNo de-novo re-decisionSubstantial-evidence reviewArbitrary-and-capricious review

Appeal Board panel

Michael 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

_______________________________________________ ) In the matter of: )

)

---------------------------- )

ISCR Case No. 20-01207

)

) 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

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 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