CASEClearance Adjudication Search EngineCASE

Loading case…

ISCR Case 10-08705.a1 — CASE

ISCR Case 10-08705.a1denied

Case Headnote

ISCR Case No. 10-08705.a1

May 14, 2012· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, representing himself, was denied clearance due to concerns under Guideline E (Personal Conduct) and Guideline F (Financial Considerations). The primary issue stemmed from the applicant's theft from his employer.

While the judge found that the applicant mitigated the concerns related to Guideline F, the severity of the misconduct under Guideline E remained. Disqualifying conditions included the applicant's admission of wrongdoing only when confronted by his employer, and the finding that the theft was neither minor nor of limited duration.

Despite the application of mitigating conditions, the applicant's failure to make restitution for the stolen funds, combined with the circumstances of his admission, led to the denial of his security clearance.

Conditions Referenced

Disqualifying

AG ¶ 16(a)raisedCriminal Conduct
AG ¶ 16(c)raisedConditions That Raise a Security Concern

Mitigating

AG ¶ 20(b)rejectedThe Behavior Was Not RecentThe judge found the applicant's misconduct was ongoing for a year.
AG ¶ 20(d)rejectedThe Individual Has Taken Positive Steps to Reduce or Eliminate VulnerabilityThe applicant's failure to make restitution undermined claims of positive steps.

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 25, 2011
SOR amendedJun 14, 2011Included additional allegations under Guideline F and an allegation under Guideline E.
Hearing heldFeb 28, 2012
Decision dateMay 14, 2012

Cite For

Denial of Security Clearance Due to Serious Personal Conduct Issues Under Guideline E
Mitigation of Financial Concerns Under Guideline F Not Sufficient to Outweigh Personal Conduct Issues
Importance of Restitution in Evaluating Personal Conduct for Security Clearance Decisions.

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 F and Guideline E. The applicant argued that the Judge's credibility determination and the adverse decision were erroneous. 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 belowFrancisco Mendez — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline FGuideline E

What the Board reviewed

Credibility determination — raised by the applicantRejected
Applicant argued that the Judge's credibility determination was in error.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's conclusions regarding the applicant's misconduct were supportable on the record, and the adverse decision was affirmed based on the evidence presented.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference 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 F; Guideline E DIGEST: The Judge concluded that Applicant had mitigated the Guideline F security concerns. However, he arrived at a different conclusion regarding Guideline E. He cited to evidence that Applicant had stolen money from his employer over the course of a year and that he had admitted his misconduct only when he was caught. The Judge’s conclusion that this conduct was not mitigated is supportable on this record. Adverse decision affirmed. CASE NO: 10-08705.a1 DATE: 05/14/2012 DATE: May 14, 2012 In Re: -----------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-08705

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 25, 2011, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). On June 14, 2011, DOHA amended the SOR to include two additional allegations under Guideline F and an allegation under Guideline E (Personal Conduct). Applicant requested a hearing. On February 28, 2012, after the hearing, Administrative Judge Francisco Mendez 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’s credibility determination was in error and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guideline F are not at issue in this appeal. Consistent with the following, we affirm. The Judge found that Applicant had significant delinquent debt. He also found that Applicant had been fired by a previous employer in June 2009 for misuse of a company credit card. He had used the credit card for approximately a year for personal expenses unrelated to his job responsibilities. The expenses totaled about $3,000. Applicant did not make restitution to his employer. The Judge stated that he appeared surprised when asked about restitution, stating that the employer had not requested it. He stated that he was willing to make restitution were the employer to seek it. In the Analysis, the Judge concluded that Applicant had mitigated the Guideline F security concerns. However, he arrived at a different conclusion regarding Guideline E. He cited to evidence that Applicant had stolen money from his employer over the course of a year and that he had admitted his misconduct only when he was caught. The Judge stated that Applicant’s conduct was neither minor nor of limited duration. Although Applicant was under a financial strain at the time, he apparently had sufficient funds to take a luxury cruise only two months after he lost his job. The Judge observed that Applicant took this cruise rather than pay back his employer the money he had wrongfully taken. The Judge acknowledged evidence favorable to Applicant, such as his having assumed the responsibility of supporting his wife’s two teenage children, his good work record, and his expressions of remorse. However, he concluded that this evidence was not sufficient to outweigh the security concern arising from Applicant’s repeated misuse of the credit card. In his appeal brief, Applicant challenges the Judge’s finding that he was surprised by the question about restitution. He states that it has been his goal to resolve all of his debts, but that this particular one had “fall[en] through the cracks.” Appeal Brief at 2. Our reading of the transcript is consistent with the Judge’s challenged finding. Furthermore, to the extent that he is challenging the Judge’s credibility determination, we are required to give it deference unless it is unreasonable or contradicted by other evidence. See, e.g., ISCR Case No. 07-10158 at 5 (App. Bd. Aug. 28, 2008) (internal citation omitted). We find no reason to disturb his credibility determination. Applicant cites to evidence which, he believes, demonstrates that he has mitigated the security concern found against him. He points to his clean record since this offense, and his brief contains expressions of remorse similar to those in his hearing testimony. A Judge is presumed to have considered all of the record evidence. See, e.g., ISCR Case No. 11-03402 at 2 (App. Bd. Mar. 29, 2012). The Judge concluded that, given the circumstances of Applicant’s year-long series of thefts, his failure to make restitution, and his having taken a cruise with funds that could have been used to repay his employer, the favorable evidence which Applicant submitted was not enough to demonstrate mitigation. This conclusion is supportable on this record. Applicant has not rebutted the presumption that the Judge considered all of the record evidence. Neither has he demonstrated that the Judge weighed the evidence in a manner that is 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). 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 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