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ISCR Case 07-01466.a1 — CASE

ISCR Case 07-01466.a1denied

Case Headnote

ISCR Case No. 07-01466.a1

Apr 30, 2008· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline E (Personal Conduct) due to a documented history of shoplifting and providing dishonest information. The applicant had shoplifted at least eight times over a 15-year period, a pattern of behavior that raised significant concerns regarding his judgment and reliability.

Further complicating the application, the applicant provided inaccurate information during interrogatories and subsequently recanted previous answers. The judge determined that these actions, combined with the repeated instances of shoplifting, demonstrated poor judgment, unreliability, and dishonesty.

The appeal board affirmed the denial, concluding that the applicant's conduct was inconsistent with national security interests. The decision to deny the clearance was based on the disqualifying conditions raised under Guideline E2, specifically the applicant's history of personal conduct issues.

Conditions Referenced

Disqualifying

AG E2raisedE2: Personal Conduct

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 issuedJul 24, 2007
Answer filed—
Hearing heldJan 18, 2008
Decision dateApr 30, 2008

Cite For

Affirmation of Denial Based on Poor Judgment Under Guideline E
Impact of Dishonesty on Security Clearance Decisions
Importance of Accurate Information in Security Clearance Applications

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 concerned the denial of a security clearance based on Guideline E security concerns. The Applicant argued that the Judge's failure to mitigate these concerns was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the record.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJuan J. Rivera — denied the clearance

Decided ona hearing

Guidelines belowGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge's failure to mitigate the Guideline E security concerns is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's conclusions regarding the Applicant's actions demonstrating poor judgment, unreliability, and dishonesty, affirming the adverse decision.

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

Jeffrey D. Billett
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 conclusion that Applicant’s actions demonstrate poor judgment, unreliability and dishonesty are sustainable in light of the record. Adverse decision affirmed. CASENO: 07-01466.a1 DATE: 04/30/2008 DATE: April 30, 2008 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-01466

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 July 24, 2007, DOHA issued a statement of reasons (SOR) 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 Decision at 6. Id. requested a hearing. On January 18, 2008, after the hearing, Administrative Judge Juan J. Rivera denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s failure to mitigate the Guideline E security concerns is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge found that Applicant had shoplifted at least eight times during the last 15 years. The incidents included the taking of a duplicate key in 2002, the taking of a set of scuba lenses in 2003, and the failure to accurately report to cashiers all the items that had been selected for purchase. Additionally, Applicant had received and kept furniture he had not paid for. At the hearing, Applicant had recanted his answers to previous interrogatories, and had provided information not provided either during a prior interview by a government agent or in his answers to interrogatories.1 The Board has examined the Judge’s decision in light of the record as a whole. The Judge’s conclusion that “[Applicant’s] actions show poor judgment, unreliability, dishonesty, and an unwillingness to comply with rules and regulations” is sustainable. Furthermore, the Judge has drawn “a rational connection between the facts found” under Guideline E and his adverse decision. 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 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). Accordingly, the Judge’s adverse decision is neither arbitrary, capricious, nor contrary to law.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett 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