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ISCR 07-17076.a1: Guideline B security clearance appeal, denied (2011) · CASE

ISCR Case 07-17076.a1denied

Case headnote

ISCR Case No. 07-17076.a1

May 11, 2011· Hon. Jean E. Smallin· appeal

Summary

A U.S. citizen and linguist, originally from Egypt, was denied a security clearance under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The denial stemmed from the applicant's sexual encounters with prostitutes, which occurred after he began dating his current wife. These actions raised concerns under Disqualifying Conditions AG B2 and AG E2.

During the hearing, the judge found the applicant's testimony to be deceptive, noting that he was more candid in a prior affidavit. While Mitigating Condition AG E3 was considered, the judge ultimately determined that the applicant's claims of good character were insufficient to alleviate the security concerns.

The applicant failed to meet his burden of persuasion regarding the mitigation of these concerns. Consequently, the judge emphasized the paramount importance of national security in clearance determinations, leading to the denial of the applicant's security clearance.

Conditions referenced

Disqualifying

AG B2raisedForeign Influence
AG E2raisedPersonal Conduct

Mitigating

AG E3rejectedMitigating CircumstancesThe applicant's claims of good character and mitigating circumstances were insufficient to overturn the judge's findings.

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 issuedAug 20, 2010
Answer filed—
Hearing heldFeb 28, 2011
Decision dateMay 11, 2011

Cite for

Denial of Security Clearance Based on Personal Conduct Involving Sexual Encounters with Prostitutes
Importance of Credibility Determinations in Security Clearance Cases
Insufficient Mitigation of Security Concerns Related to Personal Conduct

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 concerns under Guideline B and Guideline E. The applicant raised multiple issues regarding the Judge's findings and credibility determinations. The Board affirmed the Judge's decision, finding substantial evidence supported the adverse ruling.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMark Harvey denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant contended that the Judge failed to consider all of the record evidence, such as his evidence of good character and accolades from the U.S. military.
Credibility determination, raised by the applicantRejected
Applicant argued that the Judge erred in his credibility determination.
Erroneous finding of fact, raised by the applicantRejected
Applicant challenged the Judge's finding that he had sexual encounters with prostitutes after he began dating his wife.
Mitigation wrongly applied / not applied, raised by the applicantRejected
Applicant contended that the Judge erred in his application of the pertinent mitigating conditions.
Whole-person analysis, raised by the applicantRejected
Applicant argued that the Judge's whole-person analysis was erroneous.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant claimed that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the Judge did not err in his credibility determinations or in his application of mitigating conditions. The adverse decision was affirmed as sustainable on the record.

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 B; Guideline E DIGEST: Judge’s finding that Applicant had sexual encounters with prostitutes after he starting dating his wife was supported by substantial record evidence. Applicant failed to rebut the presumption that the Judge considered all of the record evidence. Adverse decision affirmed. CASE NO: 07-17076.a1 DATE: 05/11/2011 DATE: May 11, 2011 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-17076

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Hany A. Zohdy, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 20, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 28, 2011, after the hearing, Administrative Judge Mark Harvey 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 the Judge considered all of the

FOOTNOTES

1 “[W]hen I went to [two Southwest Asia countries], I specifically went there to meet with and sleep with prostitutes. This is the main reason why I used to go. But after I met my wife, I continued to go to [two Southwest Asia countries] with other friends but never slept with prostitutes. I just met with them because they are almost impossible to avoid. They are everywhere.” Decision at 11, quoting Tr. at 140-141. record evidence; whether the Judge erred in his credibility determination; whether certain of the Judge’s findings were supported by substantial record evidence; whether the Judge erred in his application of the pertinent mitigating conditions; whether the Judge’s whole-person analysis was erroneous; and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guideline B, and his favorable findings under allegations 2(a) to 2(d) and 2(f) to 2(i) are not at issue in this appeal. Consistent with the following, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: Applicant is a linguist employed by Defense contractors. Born in Egypt, he moved to the U.S. and became a citizen of this country in the early 1990s. Applicant is married and has two children from a previous marriage. From 2003 to 2005 Applicant had sexual encounters with prostitutes on approximately 15 occasions in two foreign countries. Some of these encounters occurred while Applicant was dating his future wife. Applicant disclosed to his spouse that he had visited prostitutes before dating her. During an OPM interview, Applicant stated that his wife is aware of the encounters prior to their having started dating, but that she “has no knowledge of the instances that took place while we were dating . . . She would be heartbroken. She would be extremely hurt. I don’t think she would leave me but it would take a lot to mend the hurt.” Decision at 10, quoting Government Exhibit (GE) 4, Affidavit to OPM Center for Federal Investigative Services, dated September 9, 2008. In the Analysis portion of the Decision, the Judge concluded that Applicant’s encounters with prostitutes remains a security concern. He stated that Applicant was deceptive at the hearing1 and that Applicant was more candid in his answers in the OPM affidavit, quoted above. Although the Judge entered favorable findings on all other SOR allegations, he concluded that Applicant had failed to meet his burden of persuasion as to mitigation regarding his encounters with prostitutes. Applicant challenges the Judge’s finding that he had had sexual encounters with prostitutes after he began dating his wife. Viewed in light of GE 4 and the record as a whole, the challenged finding is supported by substantial record 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”). In support of his appeal, Applicant submits new evidence not contained in the record, including a chart of his foreign travels and a witness statement. We cannot consider this new evidence. See Directive ¶ E3.1.29. (“No new evidence shall be received or considered by the Appeal Board”). See also ISCR Case No. 09-03616 at 2 (App. Bd. Mar. 25, 2011). Applicant contends that the Judge failed to consider all of the record evidence, such as his evidence of good character and his accolades from the U.S. military. He also contends that the Judge failed to consider, or that he mis-weighed, his testimony concerning when he stopped engaging in sexual activity with prostitutes. However, a Judge is presumed to have considered all of the record evidence. See, e.g., ISCR Case No. 09-07395 at 3 (App. Bd. Sep. 14, 2010). Applicant has failed to rebut this presumption. Neither has he demonstrated that the Judge weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. Moreover, the Judge’s determination of the relative credibility of Applicant’s testimony and of his 2008 affidavit constitutes a reasonable interpretation of the record evidence. Applicant has not provided a reason to disturb the Judge’s credibility determination. See, e.g., ISCR Case No. 09-00395 at 3 (App. Bd. Jun. 8, 2010). The record supports a conclusion 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,’” both as to the mitigating conditions and the whole-person factors. 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 adverse decision is sustainable on this record. “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). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Order The Judge’s adverse security clearance determination 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