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ISCR Case 20-02720 — CASE

ISCR Case 20-02720denied

Case Headnote

ISCR Case No. 20-02720

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

Summary

A defense contractor in his late forties was denied a security clearance due to admitted violations under Guideline K (Handling Protected Information) and Guideline E (Personal Conduct). The applicant acknowledged transmitting classified information on three separate occasions, which was determined to be a pattern of negligent behavior.

The judge concluded that these actions raised significant doubts about the applicant's trustworthiness and reliability in managing classified information. The appeal judges affirmed this decision, emphasizing that the applicant's negligent conduct presented serious security concerns.

Ultimately, the denial was upheld because none of the mitigating conditions outlined in Guideline K or Guideline E were found to be applicable to the applicant's specific circumstances.

Conditions Referenced

Disqualifying

AG ¶ 33raisedDeliberate or Negligent Failure to Comply with Rules and Regulations for Handling of Protected InformationThe applicant's negligent pattern of behavior raised serious security concerns.

Key Rule Quoted

“Deliberate or negligent failure to comply with rules and regulations for handling of protected information raises doubt about an individual’s trustworthiness, judgement, reliability, or willingness and ability to safeguard such information, and is a serious security concern.”
— Directive, Encl. 2, App. A ¶ 33

Procedural Posture

SOR issuedFeb 1, 2021
Answer filed—
Hearing heldSep 13, 2021
Decision dateDec 15, 2021Appeal decision

Cite For

Security Clearance Denial Due to Negligent Handling of Classified Information
Pattern of Negligent Behavior as a Disqualifying Factor
Affirmation of Adverse Decisions Based on Established Security Concerns

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 violations under Guideline K and personal conduct under Guideline E. The Applicant argued that the Judge's decision was arbitrary and that his violations were not disqualifying. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRichard A. Cefola — denied the clearance

Decided ona hearing

Guidelines belowGuideline KGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends the Judge's adverse decision was arbitrary, capricious, or contrary to law.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argues the Judge failed to properly weigh the evidence and apply mitigating conditions.
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 no merit in the Applicant's arguments regarding the Judge's findings and concluded that the Judge's decision was supported by substantial evidence and not arbitrary or capricious.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decision

Appeal Board panel

Michael Ra’anan — Chair
Jennifer I. Goldstein
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. 20-02720

)

) 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 K; E DIGEST: Applicant also contends the Judge found that certain of his security violations were “inadvertent[,] but failed to find for him on those allegations.” To the extent that Applicant is arguing that negligent security violations may not be disqualifying, we find no merit in that argument. Directive, Encl. 2, App. A ¶ 33 provides, “Deliberate or negligent failure to comply with rules and regulations for handling of protected information―which includes classified and other sensitive government information, and proprietary information―raises doubt about an individual’s trustworthiness, judgement, reliability, or willingness and ability to safeguard such information, and is a serious security concern.” Adverse decision is affirmed. CASENO: 20-02720.a1 DATE: 12/15/2021 Date: December 15, 2021

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Alan V. Edmunds, Esq.

The Department of Defense (DoD) declined to grant Applicant a security clearance. On February 1, 2021, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline K (Handing Protected Information) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 13, 2021, 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 is in his late forties, has been working for defense contractors for about 17 years, and has held a security clearance for most of that employment. Under Guideline K, the SOR alleged three security violations, which were cross-alleged in a single Guideline E allegation. Applicant admitted the Guideline K allegations but denied the Guideline E allegation. Applicant admitted he sent classified information on three occasions to fellow employees on an unclassified network. These incidents occurred in 2008, 2013, and 2017. Regarding the first incident, he admits he “cut corners” in sending the email. Decision at 2. His actions during this incident were deliberate. For this incident, he received a written warning. The second incident involved him sending unclassified information in the email that when combined together constituted classified information. His actions during this incident were negligent, and he received a verbal reprimand. Applicant attributed the third incident to a systemic problem with his employer’s system for handling classified information. His action during this incident were inadvertent, and he received a verbal and written warning. “Although Applicant’s most recent security clearance violation may have been inadvertent; there appears to also be a negligent pattern here. Such a pattern cannot be condoned when handling classified information.” Decision at 4. “It cannot be said that a similar security clearance violation is unlikely to occur.” Decision at 6. None of the Guideline K or E mitigating conditions apply. Applicant has failed to mitigate the alleged security concerns.

DISCUSSION

Applicant contends “the Judge erred in some of his findings of fact.” Appeal Brief at 2. However, he does not identify any of the Judge’s specific findings of fact that are purportedly erroneous. This assignment of error fails for lack of specificity. See, e.g., ISCR Case No. ISCR Case No. 17-03372 at 2-3 (App. Bd. Oct. 19, 2018) (explaining why assignments of error must be set forth with sufficient specificity to permit review on appeal).

Applicant also contends the Judge found that certain of his security violations were “inadvertent[,] but failed to find for him on those allegations.” Appeal Brief at 2. To the extent that Applicant is arguing that negligent security violations may not be disqualifying, we find no merit in that argument. Directive, Encl. 2, App. A ¶ 33 provides, “Deliberate or negligent failure to comply with rules and regulations for handling of protected information―which includes classified and other sensitive government information, and proprietary information―raises doubt about an individual’s trustworthiness, judgement, reliability, or willingness and ability to safeguard such information, and is a serious security concern.” See also ISCR Case No. 18-00496 at 6 (App. Bd. Nov. 8, 2019) (simple negligence in the handling of classified information can be a matter of grave security concern). Applicant further argues the Judge erred in failing to comply with the provisions in Executive Order 10865 and the Directive by not considering all of the evidence, by not properly weighing the evidence, and by not correctly applying the mitigating conditions and whole-person concept. In his arguments, for example, he contends that his security violations were not recent or frequent, that they happened under unusual circumstances making them unlikely to recur, and that they resulted in no compromise of classified information. He also claims his security violations were the result of inadequate training or unclear procedures, and “[he] has had training after each incident and did not repeat the mistake again.” Appeal Brief at 7. Additionally, he appears to be arguing the three incidents do not show a pattern of negligence because they are distinguishable from each other. None of Applicant’s arguments, however, are enough to rebut the presumption that the Judge considered all of the record evidence or to demonstrate the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 19-01400 at 2 (App. Bd. Jun. 3, 2020). 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 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: Jennifer I. Goldstein Jennifer I. Goldstein Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board