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ISCR 08-05020: Guideline E security clearance appeal, denied (2009) · CASE

ISCR Case 08-05020denied

Case headnote

ISCR Case No. 08-05020

Oct 9, 2009· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, representing herself, was denied under Guideline E (Personal Conduct) due to her involvement in a scheme to exploit her military exchange status. The judge found her denials of wrongdoing not credible, citing Disqualifying Condition E2.

The applicant's participation in the scheme was a primary factor in the denial. Despite her arguments, the judge determined that the mitigating evidence she presented was insufficient to alleviate the government's security concerns.

Consequently, the initial denial of her security clearance was affirmed on appeal, as the issues related to her personal conduct and credibility remained unresolved.

Conditions referenced

Disqualifying

E2raisedPersonal 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 issuedMar 30, 2009
Answer filed—Applicant requested a decision on the written record.
Hearing heldJul 30, 2009Decision made by Administrative Judge David M. White.
Decision dateOct 9, 2009Appeal affirmed by the Board.

Cite for

Denial Based on Personal Conduct Under Guideline E
Insufficient Mitigating Evidence to Overcome Disqualifying Conduct
Credibility Determinations by the Judge Are Upheld on Appeal

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 was filed by the applicant after the Administrative Judge denied her request for a security clearance based on concerns under Guideline E (Personal Conduct). The applicant argued that the Judge's decision was arbitrary and did not consider mitigating evidence. The Board affirmed the Judge's decision, finding it supported by substantial evidence and not arbitrary or capricious.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDavid M. White denied the clearance

Decided onthe written record

Guidelines belowGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argued that the Judge's adverse decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was based on substantial evidence and that the applicant did not demonstrate that the Judge's decision was arbitrary, capricious, or contrary to law. The Judge reasonably weighed the evidence and explained why the mitigating evidence was insufficient to overcome the government's security concerns.

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
William S. Fields

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

APPEARANCES

DATE: October 9, 2009 In Re: Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-05020

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 30, 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 decision on the written record. On July 30, 2009, after considering the record, Administrative Judge David M. White denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse clearance decision is arbitrary, capricious or contrary to law. Applicant argues that the Judge’s adverse decision is unfair because the Judge relied on an investigative file prepared by persons who did not believe Applicant. Applicant contends that mitigating evidence was not considered, and questions were not posed of the investigative body regarding possible weaknesses in the (unfavorable) theory of the case. Applicant has not demonstrated that the Judge’s decision is arbitrary, capricious or contrary to law. The Judge found that Applicant participated in a scheme to exploit her status at a military exchange overseas to purchase exchange merchandise for foreign nationals ineligible to make such purchases. He further found that her denials were not credible and constituted the deliberate provision of false information to her employers and the investigators. The Judge’s adverse findings were based on substantial evidence and are sustainable. (See Directive ¶E3.1.14 and ¶E3.1.32.1.) Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. See, e.g., ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007). A party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). In this case, the Judge weighed the evidence and the seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. The Judge reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. Furthermore, Applicant has not provided a cogent reason on appeal to disturb the Judge’s credibility determination. Applicant’s argument on appeal about questions the Judge could have asked is unpersuasive. Applicant elected to have her decision on the written record. Thus, there was no mechanism for the Judge to ask questions. Also, the burden is on Applicant to make her case in mitigation, rebuttal or extenuation, not on the Judge who is an impartial adjudicator. (See Directive ¶E3.1.10, ¶E3.1.15 and¶ E3.1.25.) After reviewing the record, the Board concludes 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.’” 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). Therefore, the Judge’s ultimate unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board