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ISCR Case 08-03960.a1 — CASE

ISCR Case 08-03960.a1denied

Case Headnote

ISCR Case No. 08-03960.a1

Apr 13, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A 64-year-old retired U.S. Marine and defense contractor was denied a security clearance under Guideline E (Personal Conduct). The denial stemmed from the applicant's relationship with a woman who possessed a significant criminal history, which raised concerns about his judgment and potential vulnerability to duress.

Specifically, the adjudicator cited disqualifying conditions E2.16(d), E2.16(e), and E2.16(g). The judge determined that the applicant's recent conduct, characterized by poor judgment in maintaining this relationship, outweighed his otherwise commendable 40-year career.

Ultimately, the applicant failed to demonstrate that he had mitigated the security concerns associated with his conduct, leading to the denial of his security clearance.

Conditions Referenced

Disqualifying

E2.16(d)raisedCredible Adverse Information That Supports a Whole-person Assessment of Questionable Judgment.
E2.16(e)raisedPersonal Conduct That Creates a Vulnerability to Exploitation, Manipulation, or Duress.
E2.16(g)raisedAssociation with Persons Involved in Criminal Activity.

Key Rule Quoted

“After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns.”
— Directive ¶ E3.1.15

Procedural Posture

SOR issuedSep 19, 2008
Answer filed—
Hearing heldJan 29, 2009
Decision dateApr 13, 2009

Cite For

Impact of Personal Relationships on Security Clearance Under Guideline E
Importance of Recent Conduct Over Past Achievements in Security Clearance Decisions
Burden of Persuasion on Applicants to Mitigate Security Concerns.

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 Guideline E concerns regarding the Applicant's relationship with a woman with a criminal history. The Applicant argued that the Judge erred in finding substantial evidence of security concerns and in his whole person analysis. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationAttorney

Judge belowLeRoy F. Foreman — denied the clearance

Decided ona hearing

Guidelines belowGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge erred in concluding that the Government had presented substantial evidence of Guideline E security concerns.
Mitigation wrongly applied / not applied — raised by the applicantRejected
The Judge erred in concluding that Applicant had failed to mitigate any security concerns contained in his case.
Whole-person analysis — raised by the applicantRejected
The Judge’s whole person analysis was erroneous.

Why the Board ruled this way

The Board found no error in the Judge's conclusions regarding the Applicant's conduct and its implications for security concerns, affirming the decision based on substantial evidence and a rational connection between the facts and the decision made.

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

Michael Y. Ra’anan — Chair
Jean E. Smallin
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 based his ultimate holding upon the extent to which Applicant’s conduct with a particular woman (W) evidences poor judgment or subjects him to the possibility of duress, rather than simply upon the nature of the relationship itself. The Board finds no reason to disturb the Judge’s conclusion that the record as a whole in Applicant’s case raises Guideline E security concerns. Hearing Office decisions are binding neither on other Hearing Office Judges nor on the Board. The Judge articulated a satisfactory explanation for his decision including a rational connection between the facts found and the choice made. The Judge explicitly considered Applicant’s stellar 40-year career. However, he reasonably explained why Applicant’s recent conduct with W weighs more heavily than his prior good record. The Judge’s conclusion that Applicant had failed to meet his burden of persuasion as to mitigation, either under the pertinent mitigating conditions or the whole-person factors, is sustainable on this record. After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. Adverse decision affirmed. CASENO: 08-03960.a1 DATE: 04/13/2009 DATE: April 13, 2009 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-03960

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Department Counsel FOR APPLICANT James H. Shoemaker, Jr., Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On September 19, 2008, 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 requested a hearing. On January 29, 2009, after the hearing, Administrative Judge LeRoy F. Foreman 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 erred in concluding that the Government had presented substantial evidence of Guideline E security concerns; whether the Judge erred in concluding that Applicant had failed to mitigate any security concerns contained in his case; and whether the Judge’s whole person analysis was erroneous. Finding no error, we affirm. The Judge made the following unchallenged findings of fact: Applicant is a 64-year-old employee of a defense contractor. He retired from the U.S. Marine Corps in the 1980s, having risen to the grade of E-9. He is married, but he and his wife have been legally separated since 2005. Applicant currently lives with a woman (W). He met her on a computer network in May 2005, and they began a romantic relationship the following July, prior to his separation from his spouse. Applicant’s wife is aware of the relationship. W has a lengthy criminal record. Between 1994 and 2004, she was arrested and/or convicted of such offenses as theft, receiving stolen property, forgery, illegal possession of a firearm, having a concealed firearm, possessing a firearm with an obliterated serial number, unauthorized use of a motor vehicle, burglary, distribution of methamphetamine, possession of drug paraphernalia, bank fraud, and violation of probation. In 2005, she stated to Applicant that, despite treatment for drug addiction, she had relapsed and had used crack cocaine. Applicant attributed her criminal record to her drug addiction. After the 2005 incident, she underwent detoxification and attended narcotics anonymous (NA) for 90 consecutive days. She has not attended NA since then, nor has she received other counseling or treatment. Applicant stated that W is “a changed person,” (Decision at 4) and that he would know if she relapsed. Were that to occur, Applicant stated that he would place her in a rehabilitation program. See, e.g., Applicant Exhibit A, a letter of recommendation provided by Applicant’s supervisor. “In regard to his personal relationship with [W], [Applicant] early on advised me of her addiction and I am well aware of the situation.” See also Tr. at 82, testimony by a friend and colleague: “When [Applicant] first met the young lady . . . we got together for lunch and he told me what was going on and that he was involved with her and that she had some problems and he wanted to help her along the way.” Neither of these persons unequivocally demonstrates awareness of the full extent of W’s criminal history. See Directive ¶ E2.16(d): “credible adverse information that is not explicitly covered under any other guideline . . . which supports a whole-person assessment of questionable judgment[.]” Directive ¶ E2.16(e): “ personal conduct, or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as . . . engaging in activities which, if known, may affect the persons’ personal, professional, or community standing[.]” Directive ¶ E2.16(g): “association with persons involved in criminal activity.” See also ISCR Case No. 07- 00852 at 4 (App. Bd. May 27, 2008): “The disqualifying conditions listed under each Guideline are illustrative only, not exhaustive and exclusive. In analyzing cases before them, Judges must be guided by common sense and with a view toward making a reasoned determination consistent with the interests of national security. The general security concern raised by Guideline E is that “[c]onduct involving questionable judgment . . . can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information.” The Judge concluded that Applicant’s having developed and maintained a long-term relationship with a person having such an extensive criminal record evidences questionable judgment. Additionally, he stated that, while Applicant had disclosed his affair to his wife and to his immediate supervisor, “the record does not reflect whether he disclosed the full extent of [W’s] criminal record. In the broader community, including the military community with whom he must interact, it is likely that his personal and professional standing would be adversely affected.” Id. at 7. Furthermore, he stated that under the facts of this case, Applicant has made himself vulnerable to duress or exploitation, either by W or his wife. The Judge noted that Applicant’s claim that his wife actually agreed to his relationship with W, rather than merely having acquiesced, is not corroborated by testimony or other evidence from her. Applicant argues on appeal that the Judge erred in relying upon the extramarital nature of his relationship with W. However, after reading the Judge’s decision as a whole, the Board concludes that the Judge based his ultimate holding upon the extent to which Applicant’s conduct with W evidences poor judgment or subjects him to the possibility of duress, rather than simply upon the nature of the relationship itself. Considering the record as a whole, the Board finds no reason to disturb the Judge’s conclusion that the record as a whole in Applicant’s case raises Guideline E security concerns. In support of his appeal, Applicant points to decisions by the Hearing Office, which he argues support his request for a favorable determination. The Board gives due consideration to these cases. However, each case “must be decided upon its own merits.” Directive ¶ E2.2.3. Moreover, Hearing Office decisions are binding neither on other Hearing Office Judges nor on the Board. See ISCR Case No. 06-24121 at 2 (App. Bd. Feb. 5, 2008). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for his 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 explicitly considered Applicant’s “stellar 40-year career.” Decision at 9. However, he reasonably explained why Applicant’s recent conduct with W weighs more heavily than his prior good record. The Judge’s conclusion that Applicant had failed to meet his burden of persuasion as to mitigation, either under the pertinent mitigating conditions or the whole-person factors, is sustainable on this record. See 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’”). See also Directive ¶ E3.1.15 (After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns.)

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board