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ISCR Case 09-01617.a1 — CASE

ISCR Case 09-01617.a1denied

Case Headnote

ISCR Case No. 09-01617.a1

Nov 24, 2010· Hon. Michael D. Hipple· appeal

Summary

A Ph.D. analytical chemist was denied a security clearance under Guideline E (Personal Conduct) and Guideline K (Handling Protected Information). The denial stemmed from two primary disqualifying conditions: K.1, related to improper handling of protected information, and E.2, concerning personal conduct.

The applicant improperly stored classified information, creating a risk of compromise. This failure to adhere to security procedures was a significant factor. Additionally, the applicant had a history of making intemperate and disrespectful comments, which raised concerns about his judgment and overall reliability.

Despite a positive reputation within his workplace, the applicant's documented history of unprofessional behavior and non-compliance with security protocols ultimately led to the denial of his security clearance.

Conditions Referenced

Disqualifying

K.1raisedImproper Storage of Classified Information
E.2raisedPersonal Conduct That Raises Questions About Judgment

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 28, 2009
Answer filed—
Hearing heldJun 1, 2010
Decision dateNov 24, 2010

Cite For

Denial of Security Clearance Based on Improper Storage of Classified Information Under Guideline K
Denial of Security Clearance Based on Personal Conduct Under Guideline E
Affirmation of Due Process Claims Not Supported by the Record

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 security clearance based on concerns under Guideline K and E. The applicant argued he was denied due process and that the Judge's decision was arbitrary and capricious. The Board affirmed the AJ's decision, finding no harmful errors in the proceedings.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMark Harvey — denied the clearance

Decided ona hearing

Guidelines belowGuideline KGuideline E

What the Board reviewed

Due-process / fairness — raised by the applicantRejected
Applicant claimed he was denied due process due to insufficient time to respond to the amendment to the SOR.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge failed to consider all the record evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful errors in the AJ's decision, affirming that the Judge properly considered the evidence and articulated a rational basis for the denial of the security clearance.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael D. Hipple
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 K DIGEST: Applicant’s claim that he was denied due process is not supported by the record evidence.. Adverse decision affirmed. CASENO: 09-01617.a1 DATE: 11/24/2010 DATE: November 24, 2010 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-01617

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 August 28, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline K (Handling Protected Information) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). On April 22, 2010, DOHA issued an amendment to the SOR, adding security concerns raised under Guideline E (Personal Conduct). Applicant requested a hearing. On September 15, 2010, 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 Applicant was denied due process; whether the Judge failed to consider all the record evidence; and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. Consistent with the following discussion, we affirm the decision of the Judge. Applicant is an employee of a Defense contractor, working as an analytical chemist. He holds a Ph.D. in chemistry from a well-known university. He began working for his current employer approximately two years prior to the close of the record. Before that, he was employed by another defense contractor, C. In 2004, Applicant received a memo citing him for unprofessional behavior in the workplace. This behavior included posting signs with personal comments about management, as well as communicating by e-mail “negative comments” about a large company project. Decision at 4. In 2008, Applicant’s employment with C was terminated, due to a reduction in force. Subsequently, management found in Applicant’s office four documents that demonstrated failure to comply with procedures and policies set forth in DoD Manual 5220.22-M, National Industrial Security Program Operating Manual (NISPOM), February 28, 2006. These documents consisted of a memo attached to a classified cover sheet; a document on blue paper, of a kind used to designate a classified document; a document with classified headers and footers removed by tearing; and a classified document with marker blackouts of some of its classified content. Applicant enjoys an excellent reputation for reliability, trustworthiness, and leadership. His Director of Security at his current employer finds him to be “100% security compliant.” In the Analysis portion of the Decision, the Judge considered evidence favorable to Applicant, such as his character references, his good security record during his current employment, and his lengthy history of security compliance. However, he also noted that Applicant had improperly stored classified information, which entailed a risk of compromise. Additionally, the Judge cited Applicant’s history of intemperate, insubordinate, and disrespectful comments, which raise questions about his judgement and reliability. Accordingly, the Judge denied Applicant a clearance. Applicant contends that the Judge denied him due process. Specifically, he states that he had little time to respond to the amendment to the SOR before his hearing. The record does not support this allegation. As stated above, Applicant was sent the amendment to the SOR on April 22, 2010. His hearing occurred on June 1, which gave him ample time to prepare for the hearing. There is nothing in the record to suggest Applicant was unprepared, and he made no reference to any such concerns at any point in the hearing. There is no evidence to indicate that Applicant was denied due process. Applicant contends that the Judge failed to consider all the record evidence. However, his brief is not sufficient to rebut the presumption that a Judge has considered all of the evidence in the record. See, e.g., ISCR Case 09-01735 at 2 (App. Bd. Aug. 31, 2010). Applicant has cited to a number of Hearing Office decisions which, he argues, support his case for mitigation. We give due consideration to these cases. However, each case must be decided upon its own merits. Directive, Enclosure 2 ¶ 2(b). Moreover, Hearing Office decisions are binding neither on other Hearing Office Judges nor on the Board. See, e.g., ISCR Case No. 06-24121 at 2 (App. Bd. Feb. 5, 2008). The cases Applicant cites have significant differences from his own. Moreover, one of them was reversed on appeal. These cases do not demonstrate that the Judge’s decision was arbitrary, capricious, or contrary to law. 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.’” 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).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple 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