Loading case…

ISCR 06-07515.a1: Guideline E security clearance appeal, denied (2008) · CASE

ISCR Case 06-07515.a1denied

Case headnote

ISCR Case No. 06-07515.a1

Apr 24, 2008· Hon. Jean E. Smallin· appeal

Summary

A facility security officer's security clearance was denied under Guideline E (Personal Conduct) and Guideline K (Handling Protected Information). The denial stemmed from the applicant allowing an unqualified assistant access to sensitive personal information.

The applicant, despite being aware of established security protocols, failed to comply with them in their role as a facility security officer. This lapse in judgment and adherence to procedure led to the raising of disqualifying conditions K.1 and E.2.

The applicant appealed the decision, citing factual errors in the judge's initial ruling. However, the appeal board determined these alleged errors were harmless and did not impact the overall outcome. Consequently, the denial was upheld, reinforcing the applicant's responsibility to safeguard protected information.

Conditions referenced

Disqualifying

K.1raisedHandling Protected Information
E.2raisedPersonal Conduct

Key rule quoted

“A clearance may be granted only when ‘clearly consistent with the interests of the national security.’”
Dep’t of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural posture

SOR issuedJun 29, 2007
Answer filed—
Hearing heldDec 28, 2007
Decision dateApr 24, 2008

Cite for

Security Violations Under Guideline K and Guideline E
Harmless Error Doctrine in Factual Findings
Responsibility of Facility Security Officers to Protect Sensitive Information

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 an applicant who was denied a security clearance due to concerns under Guideline K and Guideline E. The applicant argued that the Judge's decision was arbitrary and contained factual errors. The Board affirmed the Judge's decision, finding the errors harmless and the conclusions supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPhilip S. Howe 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 argued that the Judge's decision was arbitrary, capricious, or contrary to law due to factual errors and mischaracterizations.

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 that the Judge's factual findings, although containing errors, were harmless and did not affect the outcome. The Judge's conclusions were supported by substantial evidence and were not arbitrary or capricious.

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

Michael D. Hipple
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 K; Guideline E DIGEST: Applicant, a facility security officer should have been aware that sensitive personal information must be protected. Although the Judge made factual errors they are harmless. Adverse decision affirmed. CASENO: 06-07515.a1 DATE: 04/24/2008 DATE: April 24, 2008 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-07515

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On June 29, 2007, DOHA issued a statement of reasons advising Applicant of the basis for that decision—security concerns raised under Guideline K (Handling 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 December 28, 2007, after the hearing, Administrative Judge Philip S. Howe denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. Specifically, Applicant points out that the Judge’s decision contains factual errors and mischaracterizations. Applicant also disagrees with the Judge’s interpretation of the evidence. Whether the Record Supports the Judge’s Factual Findings Facts: The Judge made the following relevant findings of fact: Applicant is Vice-President and Facility Security Officer (FSO) at a government contracting firm. Security personnel at the company’s headquarters sent Applicant an e-mail message in March 2004 stating that his uncleared assistant could not have access to the Joint Personnel Adjudication System (JPAS), a DoD program containing sensitive personal information. Computer records show that Applicant opened the message. [Applicant has no memory of reading it.] Applicant received a password for access to JPAS. Applicant’s firm got access to JPAS in approximately April 2004. Applicant allowed his assistant, who did not have a security clearance, access to JPAS on a regular basis by giving him Applicant’s user name and password, and the assistant also helped Applicant to create subsequent passwords. In July 2005, security personnel at headquarters learned that Applicant was allowing his assistant access to JPAS. Applicant was instructed to stop that practice. Applicant immediately instructed his assistant not to access the program on his own, but continued to give him information from JPAS in paper print-out format. In September 2005, Applicant was advised to change his password to further limit the assistant’s access. Applicant complied.

DISCUSSION

Discussion: The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they are supported by substantial evidence—“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620-21 (1966). In evaluating the Judge’s findings, we are required to give deference to the Judge’s credibility determinations. Directive ¶ E3.1.32.1. Applicant points out several factual errors in the Judge’s decision. The Judge stated that Applicant’s firm began using JPAS in April 2004 and that Applicant therefore was in violation of Applicant also notes the same error in the Judge’s synopsis. The Board has held that error in the synopsis of a decision is generally harmless. See, e.g., ISCR Case No. 02-06338 at 3 (Sep. 7, 2004). Applicant identifies other errors, such as Applicant’s age and years of service in the Air Force. Likewise, these errors are harmless. proper security procedures for 18 months. Decision at 3 and 5-7. Applicant states, and Department Counsel acknowledges, that Applicant began using JPAS in August 2004, and Applicant therefore demonstrated that the period of violation was shorter. The Judge also mischaracterized computer use under JPAS, apparently believing that JPAS could only be accessed on one computer, which Applicant moved into his office in July 2005. Decision at 3. Although these are factual errors, they are harmless errors when viewed in the context of the record as a whole. It is not likely that the Judge would have reached a different decision if he had found that Applicant’s security violations began four months later or that JPAS was accessible from more than one computer. Whether the Record Supports the Judge’s Ultimate Conclusions A Judge is required to “examine the relevant data and articulate 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, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). The Appeal Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary, capricious, or contrary to law. Directive ¶ E3.1.32.3. “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Dep’t of the Navy v. Egan, 484 U.S. 518, 528 (1988). Once the government presents evidence raising security concerns, the burden shifts to the applicant to rebut, explain, extenuate , or mitigate those concerns. See Directive ¶ E3.1.15. The Judge considered Applicant’s testimony in that regard and reasonably concluded that Applicant had not met his burden of proof. Although Applicant argues that he was unaware until July 2005 of the requirement that his assistant have a security clearance in order to access JPAS, the record supports the conclusion that Applicant received and opened an e-mail message containing that information in March 2004 and was therefore on notice as to the requirement. The Judge pointed to Applicant’s years of security experience. While Applicant states that he did not receive training on the JPAS program, he had a responsibility as the FSO for his office to familiarize himself with at least the basic concepts of JPAS. The fact that he was given a user name and password for JPAS access should have caused Applicant, as FSO, to realize that JPAS was more restricted than prior systems. Since access to the information was limited, an experienced FSO should not have shared the information itself with an uncleared employee, at least without confirming that he was allowed to do so. Moreover, as an experienced FSO, Applicant should not have allowed another employee access to his user name and password. Applicant argues that the Judge’s decision is overly harsh because he did not compromise classified information. As an FSO, he should have been aware that not only classified information, but also sensitive personal information, must be protected. Directive ¶¶ E2.34(a) and (g). The Judge discussed why disqualifying conditions under both Guideline K and Guideline E applied to Applicant’s conduct and why the conduct was not mitigated under the Guidelines or a whole-person analysis. The Judge’s decision is sustainable based on record evidence. Applicant’s ability to argue for a different interpretation of the evidence and his disagreement with the Judge regarding the significance of Applicant’s handling of protected information do not indicate error on the part of the Judge. See, e.g., ISCR Case No. 04-08806 at 4 (App. Bd. May 8, 2007). The Judge’s decision is neither arbitrary, capricious, nor contrary to law.

ORDER

The Judge’s decision denying Applicant a security clearance is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, 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