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ISCR 07-12896.a1: Guideline D security clearance appeal, denied (2008) · CASE

ISCR Case 07-12896.a1denied

Case headnote

ISCR Case No. 07-12896.a1

Jun 25, 2008· Hon. Jean E. Smallin· appeal

Summary

A former Navy employee was denied a security clearance due to concerns under Guideline D (Sexual Behavior), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct). The denial stemmed from a finding that the applicant committed sexual battery against a coworker, which led to the applicant's termination from employment.

During the subsequent investigation, the applicant provided false statements, admitting this was due to fear of losing their job and the associated stigma. Additionally, the applicant failed to disclose the unfavorable job termination on their Security Clearance Application, which was considered a significant omission.

The judge concluded that these actions were inconsistent with national security interests, resulting in the denial of the security clearance.

Conditions referenced

Disqualifying

AG DappliedSexual Behavior
AG EappliedPersonal Conduct
AG JappliedCriminal 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 issuedOct 18, 2007
Answer filed—
Hearing heldMar 20, 2008
Decision dateJun 25, 2008

Cite for

Denial of Security Clearance Due to Serious Allegations of Sexual Misconduct
Impact of False Statements on Security Clearance Eligibility
Consideration of Personal Conduct in Security Clearance Determinations

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 security concerns under Guidelines E, D, and J. 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.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMartin H. Mogul denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline DGuideline J

What the Board reviewed

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

Why the Board ruled this way

The Board found no error in the Judge's decision, affirming that the adverse decision was supported by substantial evidence and was not arbitrary or capricious.

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

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 E, Guideline D; Guideline J DIGEST: The Judge found: In 2006, Applicant was removed from a project and his employment was terminated following an investigation by the Navy which determined that Applicant had committed Sexual Battery on a fellow employee. Applicant testified that he had lied about the incident to a Naval investigator, and executed a false statement because he was afraid that he would lose his job and his coworkers would think he was a homosexual. He did not admit to the incident until he was in the process of undergoing a polygraph examination. Adverse decision affirmed. CASENO: 07-12896.a1 DATE: 06/25/2008 DATE: June 25, 2008 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-12896

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Alan V. Edmunds, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On October 18, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline E (Personal Conduct), Guideline D (Sexual Behavior) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On March 20, 2008, after the hearing, Administrative Judge Martin H. Mogul 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, D and J security concerns is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following sustainable findings: In 2006, Applicant was removed from an assigned project and his employment was terminated following an investigation by the U.S. Department of the Navy which determined that Applicant had committed Sexual Battery on a fellow employee. Applicant testified that he had lied about the incident to a Naval investigator, and executed a false statement to that effect, because he was afraid that he would lose his job and his coworkers would think he was a homosexual. He did not admit to the incident until he was in the process of undergoing a polygraph examination. Applicant completed a Security Clearance Application (SCA) in September 2006. Question 22 of the application asked whether during the last seven years, Applicant had ever been terminated from a job, or lost his job under other than favorable circumstances. Applicant replied “No” to that question. Applicant later submitted a second version of the SCA, in which he corrected his answer to question 22, to show that he had lost his job under less than favorable conditions. However, he did not attempt to make that correction until after he had revealed the truth about the incident during the polygraph examination process. Decision at 2-3. The Board has examined the Judge’s decision in light of the record as a whole and concludes that the Judge has drawn ‘a rational connection between the facts found’ under Guidelines E, D and J 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 not arbitrary, capricious, or contrary to law.

ORDER

The decision of the Judge denying Applicant a security clearance 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