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ISCR Case 07-03431 — CASE

ISCR Case 07-03431unknown

Case Headnote

ISCR Case No. 07-03431

Jun 27, 2008· Hon. Michael D. Hipple· appeal

Summary

This case concerns a 30-year-old research analyst employed by a defense contractor, whose security clearance was reviewed under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The applicant's record included multiple Article 15s and various traffic infractions, which raised disqualifying conditions under the guidelines.

Initially, an Administrative Judge issued a favorable decision. However, the Appeal Board subsequently reversed this decision, finding that the Judge's conclusions were arbitrary and lacked substantial evidentiary support. The Board specifically noted that the Judge failed to consider the totality of the applicant's misconduct.

Consequently, the Appeal Board found that the Judge's analysis regarding the applicant's conduct under both Guideline E and Guideline J was insufficient. The outcome of this case is "None," indicating that the favorable decision was overturned, and the applicant did not receive a clearance at this stage of the process.

Conditions Referenced

Disqualifying

AG ¶ 15raisedCriminal Conduct
AG ¶ 14raisedPersonal Conduct

Key Rule Quoted

“Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance.”
— Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)

Procedural Posture

SOR issuedJun 7, 2007
Answer filed—
Hearing heldFeb 27, 2008
Decision dateJun 27, 2008Appeal Board decision reversed the favorable ruling.

Cite For

Arbitrary and Capricious Standard for Reviewing Administrative Decisions
Failure to Consider the Totality of an Applicant's Misconduct
Strong Presumption Against Granting Security Clearance When Concerns Arise

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

Reversed

The appeal involved a review of an Administrative Judge's decision to grant a security clearance to the applicant. The Department Counsel argued that the decision was arbitrary and capricious due to the Judge's failure to properly analyze the applicant's history of misconduct. The Board agreed and reversed the favorable decision, finding that the Judge's conclusions were not supported by the evidence.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowKathryn M. Braeman — granted the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the Government (Department Counsel)Error sustained
The Judge's favorable clearance decision was arbitrary, capricious, and contrary to law.

Why the Board ruled this way

The Board found that the Judge's favorable application of the whole person concept was not sustainable based on the record, as it failed to adequately consider the significance of the applicant's pattern of misconduct and did not provide a satisfactory explanation for her conclusions.

No rational connection between facts and conclusionIgnored material evidence

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo 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; Guideline J DIGEST: The Judge’s favorable application of the whole person concept is not sustain able on this record. Her conclusion relied on her characterization of Applicant’s four Article 15s, seven traffic infractions and four theft-type offenses as minor and out of character. Favorable decision reversed. CASENO: 07-03431 DATE: 06/27/2008 DATE: June 27, 2008 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-03431

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT John Bayard Glendon, Esq., Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On June 7, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence), Guideline E (Personal Conduct) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 27, 2008, Administrative Judge Kathryn M. Braeman granted Applicant’s request for a security clearance. Department Counsel submitted a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issue on appeal: whether the Judge’s favorable clearance decision under Guidelines E and J is arbitrary, capricious, or contrary to law. Whether the Record Supports the Administrative Judge’s Factual Findings A. Facts The Administrative Judge made the following relevant findings as to the Guideline E and J allegations: Applicant is 30 years old and has been a research analyst for a defense contractor since November 2004. He completed a Security Clearance Application (SCA) to obtain a clearance in November 2004. Previously he worked as a linguist for other contractors and for the military. He has a total of eleven years service to the U.S. Applicant served in the U.S. military from 1996 to 2001, and was granted a clearance in 1997. He worked as a linguist for a Department of Defense (DoD) agency on special assignment from 2001 to 2003, and was honorably discharged in 2003. His awards included a commendation for “exceptionally meritorious achievement as an integral member” of an advance party, a Good Conduct Medal for the period 1996 to 1999, a Military Excellence Award in 2000, and a Certificate of Appreciation in 2001. He has maintained a clearance in his defense contractor job since 2003. Applicant received four Article 15swhile in the military, but they were never part of his Official Military Personal File (OMPF). He did not list them on his SCA because he was told they did not need to be listed. He disclosed them during a polygraph examination in order to give “all the information” he had. His last Article 15 occurred in 1999. Applicant was convicted of seven speeding or traffic infractions between 1999 and 2005. The three offenses that occurred in 2005 constituted a violation of his probation as to a 2004 offense. During a polygraph examination for a job at another DoD agency, Applicant admitted that in 2005 he had switched price tags at a department store on four occasions. He was never arrested for those incidents. Multiple character references who had known Applicant for a lengthy period of time attested to Applicant’s loyalty to the U.S. and/or his excellent job performance. B. Discussion The Appeal Board’s review of the Judge’s findings of fact 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. In this case, the appeal issue relates to the Judge’s conclusions. Whether the Record Supports the Administrative 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 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). 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 and E3.1.33.3. We review matters of law de novo. Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the government presents th evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. “The application of disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole.” See, e.g., ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20, 2006). In deciding whether the Judge's rulings or conclusions are arbitrary or capricious, the Board will review the Judge's decision to determine whether: it does not examine relevant evidence; it fails to articulate a satisfactory explanation for its conclusions, including a rational connection between the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference of opinion. In deciding whether the Judge's rulings or conclusions are contrary to law, the Board will consider whether they are contrary to the provisions of Executive Order 10865, the Directive, or other applicable federal law. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). Department Counsel argues that the Judge’s favorable clearance decision is arbitrary, capricious and contrary to law because it does not consider relevant factors, does not articulate a satisfactory explanation for its material conclusions, and fails to consider important aspects of the case. The Board finds Department Counsel’s arguments persuasive. The Judge found that the government had met its burden under the Guideline E and J disqualifying conditions, and that the security concerns were not mitigated under any specific mitigating conditions. However, she then went on to favorably apply the whole person concept, pointing generally to Applicant’s good employment and service record, and his expression of remorse. The Judge’s decision in that regard was limited to several sentences. It contained no discussion of the evidence in the context of the whole person factors and offered no analysis. Decision at 14 and 15. Moreover, the Judge’s favorable application of the whole person concept was predicated in large measure on her conclusion that the four Article 15s, seven traffic infractions, and four theft- type offenses, which had occurred between 1997 and 2005, were “minor” incidents, that were “out of character.” Id at 5, 14 and 19. Given the record in this case, that conclusion is not sustainable. The Judge's analysis of the numerous acts of misconduct in this record failed to reflect a reasonable interpretation of the record evidence as a whole. By analyzing each category of incidents separately, the Judge failed to consider the significance of the “evidence as a whole” and Applicant's pattern of conduct. See, e.g., Raffone v. Adams, 468 F.2d 860, 866 (2d Cir. 1972)(taken together, separate events may have a significance that is missing when each event is viewed in isolation). Under the whole person concept, a Judge must consider the totality of Applicant's conduct when deciding whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. See, e.g., ISCR Case No. 98-0350 at 3 (App. Bd. Mar. 31, 1999). The Judge's piecemeal analysis of Applicant's overall conduct did not satisfy the requirements of ¶ E2.2 of the Directive. Accordingly, with respect to the Guideline E and J allegations, Department Counsel has met his burden of establishing that the Judge failed to consider an important aspect of the case and failed to articulate a satisfactory explanation for her conclusions. Her overall favorable decision under those Guidelines is not sustainable.

ORDER

The Judge’s favorable security clearance decision is REVERSED. 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