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ISCR 04-11904.a1: Guideline B security clearance appeal, denied (2009) · CASE

ISCR Case 04-11904.a1denied

Case headnote

ISCR Case No. 04-11904.a1

Jul 10, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A Defense contractor's security clearance was denied due to concerns under Guideline B (Foreign Influence), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct). The applicant is married to a Lithuanian government employee, and their sister-in-law also works for the Lithuanian government. These family connections were identified as a significant foreign influence concern (AG B1).

While mitigating conditions (AG B2) were considered, the applicant did not sufficiently demonstrate that these family ties would not pose a risk to national security. Further compounding these concerns was the applicant's financial interest in Lithuania, specifically through property ownership in the country.

Ultimately, the security clearance was denied because the applicant's substantial connections to the Lithuanian government, both familial and financial, were deemed to present an unacceptable national security risk.

Conditions referenced

Disqualifying

AG B1raisedForeign Influence

Mitigating

AG B2rejectedMitigating ConditionsThe applicant did not provide sufficient evidence to mitigate the foreign influence concerns.

Key rule quoted

“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 issuedMay 14, 2008
Answer filed—
Hearing heldApr 28, 2009
Decision dateJul 10, 2009

Cite for

Foreign Influence Concerns Under Guideline B Due to Family Ties to Foreign Government
Insufficient Evidence to Mitigate Foreign Influence Risks
National Security Interests as a Basis for Clearance Denial

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 J, Guideline B, and Guideline E. The applicant argued that the Judge made factual errors and misapplied mitigating conditions. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationAttorney

Judge belowElizabeth M. Matchinski denied the clearance

Decided ona hearing

Guidelines belowGuideline JGuideline BGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant contended that the Judge made factual errors regarding the payment of health insurance.
Mitigation wrongly applied / not applied, raised by the applicantRejected
Applicant argued that the Judge erred in her application of the Guideline B mitigating conditions.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision and concluded that the material findings were based on substantial evidence. The Judge's decision was deemed sustainable and consistent with national security interests.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan (Chair)
Jean E. Smallin
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 J; Guideline B; Guideline E DIGEST: Applicant’s spouse works for the Lithuanian government as does his sister-in-law. Adverse decision affirmed. CASENO: 04-11904.a1 DATE: 07/10/2009 DATE: July, 10, 2009 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 04-11904

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Daniel Conway, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On May 14, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline J (Criminal Conduct), Guideline B (Foreign Influence), and Guideline E (Personal Conduct), of Department of Defense Directive The Judge’s favorable findings under Guideline J and E, as well as his favorable finding under the first allegation of Guideline B, are not at issue in this appeal. “. . . I purchase annually Lithuanian health insurance for $400.” Tr. at 83. 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On April 28, 2009, after the hearing, Administrative Judge Elizabeth M. Matchinski denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge made factual errors and whether the Judge erred in her application of the Guideline B mitigating conditions. Finding no harmful error, we affirm. The Judge found that Applicant is a Defense contractor working in Lithuania. He is married to a Lithuanian woman who works for the Lithuanian government. His wife has a sister who also works for the Lithuanian government. Applicant’s wife contacts her sister by e-mail once a month and by phone once every three or four months. Applicant’s spouse has two grown children who live in Lithuania. In holding against Applicant, the Judge noted the Lithuanian citizenship of Applicant’s wife, her sister, and her children; his wife’s and sister’s employment by the Lithuanian government; and that he lives in a house owned by his wife, giving him a financial interest in Lithuania. The Judge also noted that “Applicant has not shown that his sister-in-law’s work . . . does not have military or defense implications.” Decision at 15. After reviewing the record, the Board concludes that the Judge’s material findings are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. Applicant has not identified any harmful error likely to change the outcome of the case. He contends that the Judge erred in finding that he pays $400 a month for health insurance, rather than $400 annually, as he testified. The Board notes that, in the Findings of Fact section of her decision, the Judge correctly stated that Applicant’s premium was $400 annually. The erroneous statement was contained in the Analysis section. Decision at 7, 16. In light of the entirety of the record evidence, this error is harmless. See ISCR 01-23362 (App. Bd. Jun. 5, 2006); ISCR Case No. 03-09915 (App. Bd. Dec. 16, 2004); ISCR Case No. 01-11192 (App. Bd. Aug. 26, 2002). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.’” 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)). The Judge’s decision that “it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 18. See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board