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ISCR 20-00387: Guideline E security clearance appeal, denied (2022) · CASE

ISCR Case 20-00387denied

Case headnote

ISCR Case No. 20-00387

Nov 28, 2022· Hon. Moira D. Modzelewski· appeal

Summary

A federal contractor in his mid-sixties with a military background was denied a security clearance, primarily under Guideline E (Personal Conduct), despite favorable findings under Guideline F (Financial Considerations). The denial stemmed from the applicant's past involvement in illegal activities with a girlfriend, specifically drug use and prostitution.

Disqualifying conditions E2.A2.1 and E2.A2.2 were raised, indicating a pattern of questionable judgment and a deliberate omission or falsification of information. While mitigating conditions E2.A2.3 and E2.A2.4 were applied, they were insufficient to overcome the concerns.

The judge found the applicant's testimony regarding his knowledge of his girlfriend's drug use not credible, further highlighting issues with his judgment and trustworthiness. Consequently, the applicant's appeal was denied, and the security clearance was not granted.

Conditions referenced

Disqualifying

E2.A2.1raisedCriminal Conduct
E2.A2.2raisedDishonesty

Mitigating

E2.A2.3rejectedThe Behavior Was Not RecentThe judge noted that while the conduct occurred approximately 10 years ago, it still raised concerns about the applicant's judgment.
E2.A2.4rejectedEvidence of RehabilitationThe applicant did not provide evidence of counseling or other rehabilitative measures.

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 issuedJun 17, 2020
Answer filed—
Hearing heldSep 14, 2022
Decision dateNov 28, 2022Appeal decision affirmed.

Cite for

Denial of Security Clearance Based on Personal Conduct Under Guideline E
Consideration of Past Illegal Activities in Assessing Trustworthiness
Impact of Questionable Judgment on Security Clearance Eligibility

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 concerns under Guideline E and Guideline F. The Applicant argued that the Judge failed to consider all evidence in mitigation. The Board affirmed the decision, finding no harmful error in the Judge's analysis.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRobert E. Coacher denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline EGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
The Judge failed to consider all evidence in mitigation, rendering his decision arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge did not commit any harmful error and that the decision was sustainable on the record. The Judge considered all relevant evidence and articulated a satisfactory explanation for the decision.

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

James F. Duffy (Chair)
James E. Moody
Moira Modzelewski

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

APPEARANCES

_______________________________________ ) In the matter of: )

)

----- )

ISCR Case No. 20-00387

)

) 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 Date: November 28, 2022

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 June 17, 2020, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline E (Personal Conduct) and Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 14, 2022, after close of the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Robert E. Coacher denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The Judge found favorably for Applicant on the Guideline F allegations and adversely to him on the Guideline E allegation. The Applicant raised the following issue on appeal: whether the Judge failed to consider all evidence in mitigation, rendering his decision arbitrary, capricious, or contrary to law. Consistent with the following, we affirm.

The Judge’s Findings of Fact and Analysis Applicant is in his mid-sixties and divorced, with adult children. He served in the military in the 1970s, has earned a master’s degree, and is working towards a Ph.D. He began working for his current employer, a federal contractor, in 2018. He previously worked for federal contractors from 1993 to 2012. The SOR alleges that, in December 2012, Applicant was debarred from a military installation where he both lived and worked. The debarment was based on an investigation into possible prostitution and illegal drug activities of his then-girlfriend (GF), who lived with Applicant at the time, and Applicant’s involvement in those activities. Applicant met GF in about 2009 at a strip club where she worked as a dancer and began a non-romantic relationship. GF was then married to a military member but separated and divorced sometime in 2011. In December 2011, Applicant accepted a job on a military base in another part of the country. In January 2012, Applicant and GF commenced a romantic relationship, and he invited her to live with him. He secured base housing, and they moved to the base in January 2012. In March, GF began dancing at a local club. She asked Applicant for money to buy cocaine, and he provided it. He also provided money for her to buy cocaine for the purpose of selling it. Applicant admitted this conduct when interviewed by base law enforcement in August 2012. During his hearing, Applicant testified that he did not know at the time he gave GF the funds that she was using them to buy drugs but instead came to realize that fact later. “After reviewing the context of his August 2012 statement to law enforcement, I do not find his hearing testimony credible.” Decision at 3. While living in base housing, Applicant filmed GF dancing a strip tease to post on a website. He also agreed to film GF and another man engaging in sexual activity, but they ultimately were too drunk to film. Applicant believed that GF was engaging in prostitution in the local area and using his credit cards to pay for hotels. In June 2012, Applicant and GF stayed at a hotel on travel. Applicant agreed to film GF while she engaged in sex in the hotel room with a soldier. Applicant stated that he thought the soldier paid GF. Under cross-examination at the hearing, Applicant stated that he agreed to film because he was trying to get GF out of prostitution, and “if it took her getting into the pornography business to do so, he was willing to help that happen.” Decision at 4. In late June 2012, Applicant cut GF off financially. Concerned that she and her friends had brought drugs into their base house, he notified base law enforcement and consented to a search of the house, which revealed no drugs. The ensuing investigation led to Applicant being debarred from the base in October 2012. Applicant was not prosecuted by state or federal officials for any violations of law. At hearing, Applicant testified that he had improved his life in the subsequent 10 years by attending to his financial issues and pursuing his Ph.D. He has had no contact with GF since

August 2012, other than one incident in which she reached out to him on social media. He told her to leave him alone and blocked her on the media platform. Applicant was a co-participant or accessory to GF’s illegal and questionable actions while they were together as a couple in 2012. These actions included engaging in prostitution, recording GF strip tease dancing in Applicant’s base housing, recording GF’s sexual activity with a soldier, which Applicant believed was an act of prostitution, and allowing GF to use his financial resources to buy drugs and engage in prostitution. Applicant’s active role in these criminal activities of GF shows questionable judgment, unreliability, untrustworthiness, and a vulnerability to exploitation. . . . Although Applicant’s actions with GF happened approximately 10 years ago and there is no evidence that they have happened since then, it is troubling that a 53-year-old man who is well educated and has held a security clearance could be so influenced by a younger woman to allow himself to get involved in her nefarious activities, some of which took place on a military base. . . . While Applicant has ceased contact with GF, there is no evidence that he participated in any counseling to change his behavior. While some aspects of each mitigating condition apply, on the whole because of Applicant’s overall lack of good judgment, his actions are not mitigated. [Decision at 6–7.]

DISCUSSION

Applicant has not challenged any of the Judge’s specific findings of fact. Rather, he contends that the Judge erred in that he failed to consider all the evidence in mitigation and failed to apply the appropriate mitigating conditions. For example, he argues: The Administrative Judge’s decision fails to take into account all of the evidence presented, including evidence that [Applicant] admitted to his mistakes, voluntarily reported his ex-girlfriend’s conduct to the appropriate authorities, and has not communicated with her in years. Furthermore, the evidence clearly establishes that [Applicant’s] criminal behavior has not recurred for approximately ten (10) years and was not properly considered by Judge Coacher in his analysis. [Appeal Brief at 9–10.] The Judge discussed all the particular matters that Applicant is raising on appeal, to include the potentially applicable mitigating conditions. Applicant’s arguments are neither sufficient to rebut the presumption that the Judge considered all of the evidence in the record nor enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Additionally, the Judge complied with the requirements of the Directive in his whole- person analysis by considering the totality of the evidence in reaching his decision. See, e.g., ISCR Case No. 19-01400 at 2 (App. Bd. Jun. 3, 2020). Although we give due consideration to the Hearing Office cases that Applicant’s counsel has cited, they are neither binding precedent on the

Appeal Board nor sufficient to undermine the Judge’s decision. See, e.g., ISCR Case No. 17 02488 at 4 (App. Bd. Aug. 30, 2018). Applicant 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 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: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board