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ISCR 06-09643.a1: Guideline E security clearance appeal, denied (2009) · CASE

ISCR Case 06-09643.a1denied

Case headnote

ISCR Case No. 06-09643.a1

Jun 22, 2009· Hon. Jean E. Smallin· appeal

Summary

A 33-year-old former Navy service member and defense contractor employee was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline J (Criminal Conduct), and Guideline M (Use of Information Technology).

The denial was based on several disqualifying conditions. The applicant had a history of four criminal offenses, which included two convictions for driving under the influence (DUI) and one conviction for providing alcohol to minors. Additionally, the applicant violated company internet use policies, receiving two written warnings before his employment was terminated. A significant factor was the applicant's deliberate omission of a DUI conviction from his security clearance application.

The judge determined that the applicant did not present sufficient mitigating evidence to overcome these security concerns. Consequently, granting a security clearance was deemed inconsistent with national security interests, leading to the denial.

Conditions referenced

Disqualifying

AG JraisedCriminal Conduct
AG MraisedUse of Information Technology Systems
AG EraisedPersonal Conduct

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 issuedNov 20, 2008
Answer filed—
Hearing heldApr 30, 2009
Decision dateJun 22, 2009

Cite for

Insufficient Mitigating Evidence in the Context of Multiple Criminal Offenses
Impact of Deliberate Omissions on Security Clearance Applications
Affirmation of Adverse Decisions Based on Substantial Evidence

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 seeking a security clearance after being denied due to security concerns under multiple guidelines. The applicant argued that the Judge's findings were not supported by substantial evidence and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRobert J. Tuider denied the clearance

Decided onthe written record

Guidelines belowGuideline JGuideline MGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant contends that his prior employer warned him only once about his improper use of e-mail and the internet.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argues that the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Judge’s controverted findings are supported by substantial evidence. The Board found no error in the Judge's decision.

Standard of review applied

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

Appeal Board panel

Jean E. Smallin
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 J; Guideline M DIGEST: The Judge’s controverted findings are supported by substantial evidence. Adverse decision affirmed. CASENO: 06-09643.a1 DATE: 06/22/2009 DATE: June 22, 2009 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-09643

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 November 20, 2008, DOHA issued a statement of reasons (SOR) advising Applicant See, e.g., Item 9 at 2, Letter to Applicant terminating his employment. The letter states that Applicant was warned twice, in writing, about his conduct. Despite those warnings, “[m]anagement recently had cause to believe that you were again engaging in conduct that was in violation of [employer’s] Internet and E-Mail Policies. Therefore . . . an audit of your recent internet and e-mail activities was conducted. As a result, it was determined that you had installed a ‘track eraser’ program on your computer without authorization, having continued to misuse the internet to access inappropriate sites and have stored additional inappropriate materials on your company computer.” of the basis for that decision–security concerns raised under Guideline J (Criminal Conduct), Guideline M (Use of Information Technology Systems), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested decision on the written record. On April 30, 2009, after considering the record, Administrative Judge Robert J. Tuider 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 certain of the Judge’s findings of fact are supported by substantial record evidence; and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is a 33-year-old employee of a defense contractor. He served in the Navy from 1993 to 2002, holding a security clearance during his service. Applicant has four criminal offenses on his record, two of them DUIs. The first DUI occurred in 1996 and the second in 1998. In February 2003, Applicant was convicted of providing alcohol to a minor, the result of his teenage stepchildren and their friends consuming alcohol at his house. In 2004 he was convicted of misdemeanor assault for slapping his teenage stepdaughter. From 2003 to 2005 Applicant was employed by a defense contractor. The contractor terminated his employment, due to Applicant having violated company policy concerning internet and e-mail usage. The company had given Applicant two prior written warnings that he risked losing his job unless he changed his behavior. Applicant’s security clearance application inquired about drug- or alcohol-related convictions. Applicant listed his 1996 DUI but omitted the one in 1998. The Judge stated, “Applicant does not dispute that he deliberately failed to list his 1998 DUI. Applicant offered no mitigating evidence.” In the Analysis portion of his decision, the Judge stated that “Applicant presented little or no evidence to explain, extenuate, or mitigate the security concerns raised. Applicant did not meet his ultimate burden of persuasion to obtain a favorable clearance decision.” Decision at 3, 7. Applicant contends that his prior employer warned him only once about his improper use of e-mail and the internet. However, the record demonstrates that the Judge’s finding of two warnings is supported by substantial evidence. See Directive ¶ E3.1.32.1. (Substantial evidence is “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.”) The Judge’s finding that Applicant deliberately omitted his 1998 DUI is also supported by substantial evidence. 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 national security to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 8. 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: Jean E. Smallin Jean E. Smallin 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