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ISCR Case 08-08724.a1 — CASE

ISCR Case 08-08724.a1denied

Case Headnote

ISCR Case No. 08-08724.a1

Nov 13, 2009· Hon. Jeffrey D. Billett· appeal

Summary

The applicant, a systems engineer for a defense contractor, was denied a security clearance under Guideline E (Personal Conduct). The primary concern stemmed from his relationship with a foreign national, which involved both financial support and having a child together.

Despite explicit warnings from his employer to terminate contact with the foreign national, the applicant continued the relationship. This disregard for security instructions was a key factor in the denial.

The applicant's actions, specifically developing and maintaining a sexual and financial relationship with the foreign national despite warnings, led to the revocation of his access to Sensitive Compartmented Information and ultimately, the denial of his security clearance.

Conditions Referenced

Disqualifying

E2.A2.1.2raisedPersonal Conduct

Key Rule Quoted

“It is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance.”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedMar 24, 2009
Answer filed—
Hearing heldAug 31, 2009
Decision dateNov 13, 2009

Cite For

Disregard for Security Instructions Under Guideline E
Financial Support to a Foreign National as a Security Concern
Impact of Personal Relationships on Security Clearance Eligibility

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 an applicant seeking a security clearance who had a relationship with a foreign national, which raised security concerns. The Board reviewed the applicant's claims of error regarding the Judge's findings and application of mitigating conditions, ultimately affirming the adverse decision made by the Administrative Judge.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowClaude R. Heiny — denied the clearance

Decided ona hearing

Guidelines belowGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge ignored favorable evidence regarding his self-reporting.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant contended that the Judge misapplied the pertinent mitigating conditions.
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 no harmful error in the Judge's decision, affirming that the adverse security clearance 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

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
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: Applicant disregarded security instructions to cease contact with a foreign national. He developed a sexual and financial relationship with her. Although she was married to a member of the U.S. military, Applicant had a child with her. Adverse decision affirmed. CASENO: 08-08724.a1 DATE: 11/13/2009 DATE: November 13, 2009 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-08724

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 March 24, 2009, 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 August 31, 2009, after the hearing, Administrative Judge Claude R. Heiny 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 certain of the Judge’s factual findings are in error; whether the Judge’s application of the pertinent mitigating conditions is in error; and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge found that Applicant is a systems engineer for a defense contractor. He worked previously for another contractor. The gravamen of the security concerns in Applicant’s case is his relationship with a woman (W), a national of a foreign country (FC). In the early 2000s, Applicant’s employer sent him on temporary duty (TDY) to a third country, where he met W. They developed a friendship. She returned to FC toward the end of the TDY and, after he returned to the U.S., Applicant sent her $400. When he informed his security office about the friendship, he was told not to have further contact with her or send her additional money. Decision at 3. Applicant subsequently sent her monetary payments totaling $10,000. His security office again directed him to have no further contact with W. Despite his employer’s warning, Applicant saw W again. Over the course of time, they developed a sexual relationship. Applicant was often dilatory in reporting his contacts with her. Although W married a member of the U.S. military, she and Applicant had a child together. Applicant’s conduct with W resulted in revocation of his access to Sensitive Compartmented Information. W currently lives near Applicant in the U.S., and he sees her three to four times a week, providing her approximately $2,700 a month in support. The Judge noted aspects of the case that were favorable to Applicant, for example the fact that much of the adverse information came from Applicant’s own self-reporting. However, the Judge also noted that this reporting was often delayed and that Applicant continued the relationship with W after being told to terminate it. The Judge concluded that, because Applicant continues to see W in visiting with his child, the stressors which resulted in the relationship are still present. Accordingly, he concluded that Applicant cannot, under the circumstances, be found to have mitigated the security concerns arising from his relationship with W. Applicant challenges a number of the Judge’s findings of fact. However, after reviewing the record, the Board concludes that the Judge’s material findings of security concern are 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.”) Even if the Judge’s findings contain errors, they are not such as would have affected the outcome of the case. Viewed in light of the record as a whole, the decision expresses “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’s decision that “it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 13. See also 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.’”).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board