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ISCR Case 04-11860.a1 — CASE

ISCR Case 04-11860.a1denied

Case Headnote

ISCR Case No. 04-11860.a1

Jul 10, 2007· Hon. Michael D. Hipple· appeal

Summary

An electronics technician for a defense contractor was denied a security clearance under Guideline E (Personal Conduct). The denial stemmed from the applicant's unauthorized taking of government property. This action was a significant disqualifying factor in the decision.

Further complicating the case, the applicant provided inconsistent statements regarding the circumstances surrounding the taking of the property. These inconsistencies led to substantial concerns about the applicant's credibility.

Ultimately, the judge concluded that the applicant failed to demonstrate that granting a security clearance would be consistent with national security, resulting in the denial.

Conditions Referenced

Disqualifying

AG E2raisedPersonal Conduct

Key Rule Quoted

“The applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedFeb 18, 2005
Answer filed—
Hearing heldNov 30, 2006
Decision dateJul 10, 2007

Cite For

Credibility Issues Arising From Inconsistent Statements Under Guideline E
Substantial Evidence Standard for Adverse Clearance Decisions
Burden of Persuasion on the Applicant for Security Clearance

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 his request for a security clearance based on security concerns under Guideline E. The applicant argued that the Judge's findings were not based on substantial evidence and that the decision was arbitrary and capricious. The Board found no error and affirmed the Judge's decision.

Appealed bythe applicant

Applicant representationAttorney

Judge belowErin C. Hogan — denied the clearance

Decided ona hearing

Guidelines belowGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge’s factual findings were not based on substantial evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge’s adverse clearance decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Judge’s findings were based on substantial evidence, and her decision was not arbitrary, capricious, or contrary to law.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decision

Appeal Board panel

Michael D. Hipple
William S. Fields
James E. Moody

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 DIGEST: The Judge’s challenged findings are based upon substantial evidence. Adverse decision affirmed. CASENO: 04-11860.a1 DATE: 07/10/2007 DATE: July 10, 2007 In Re: --------- SSN: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 04-11860

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Dennis J. Sysco, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On February 18, 2005, DOHA issued a statement of reasons advising Applicant of the basis for that decision–security concerns raised under Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 30, 2006, after the hearing, Administrative Judge Erin C. Hogan denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant has raised the following issues on appeal: whether the Judge’s factual findings were based upon substantial evidence; and whether the Judge’s adverse clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following findings of fact: Applicant is an electronics technician for a defense contractor who has held a security clearance since 1992. From 1996 until 2002, Applicant worked for a contractor in the office of a government agency. In November 2001, workers in Applicant’s branch were asked to clean out a space previously occupied by a worker who had since retired. Among the items cleared out were tool cabinets and tools. The government employee in charge of equipment storage advised the workers that if they wanted any of the tools, to take them, since they would otherwise be thrown out. Applicant and his branch chief each took a tool cabinet. They transported the cabinets to their homes by means of a government van, doing so on company time rather than their off-duty hours. Applicant also took tools, such as pliers, socket drivers, screwdrivers, wrenches, a flashlight, and electrical tape, etc. In December 2001, Applicant was interviewed about the incident. He admitted taking the property and returned it. His access to Secret Compartmentalized Information (SCI) was terminated, and he was fired from his job. In May 2003, Applicant was interviewed by a member of the Defense Security Service (DSS). He stated in part that when he took the tool cabinet, he thought “that it would go to government auction and be auctioned off, so I was trying to sidestep that procedure. I thought the only thing I was doing wrong was side stepping the excess procedure. I know I did wrong, I apologized to the investigator and other government officials when the items were returned, as well as my boss.” Decision at 4, quoting Government Exhibit 2. Subsequently, in his answer to the SOR, Applicant stated, “The items I took were marked for excess. It was later explained to me by a family member that the items needed to be taken to a disposal unit on the base and removed from the agency’s books and then they could offer it up for public auction. I only found out about this procedure after I had removed the items that were being excessed.” Decision at 5, quoting Answer to SOR. During his testimony, Applicant acknowledged that, in his 2001 interview, he did not state that the equipment manager had authorized him to take the government property. He stated that he did not want to the get the person in trouble. He also stated that at the time he did not believe that the property was actually going to be thrown away. Decision at 5. We have examined the Judge’s findings in light of the record as a whole and conclude that they are based upon substantial evidence. See Directive ¶ E3.1.32.1; Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620-21 (1966). Therefore, we resolve the first assigned error adversely to Applicant. The Judge’s analysis is consistent with other record evidence, such as Applicant’s testimony that his employer would not have approved of his delivering the property to his home on company time.

Q: So in other words you falsified your time cards? A: I guess so, yes. Tr. at 68. Regarding the second assigned error, we note that, in analyzing the case, the Judge considered not only the underlying misconduct but also Applicant’s various statements about his state of mind when taking the property. In that regard, the Judge observed, “Applicant’s inconsistent statements pertaining to his knowledge of procedures for disposing of excess equipment raise credibility issues. His testimony that he initially did not mention the equipment manager’s name to the security investigators because he did not want to get her into trouble indicates that he had some knowledge that taking the tools and tool cabinet home was questionable.” Decision at 8. The Judge concluded that Applicant had not met his burden of persuasion that it is “consistent with national security” for him to have a clearance. Id. See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). See also Directive ¶ E3.1.15. (“The applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision”). In light of the above, we conclude that the Judge has articulated “rational connection between the facts found” and her ultimate adverse clearance decision. See Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). Accordingly, we hold that her decision is not arbitrary, capricious, or contrary to law.

ORDER

The Judge’s decision denying Applicant a clearance is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board