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ISCR 11-09219.a1: Guideline K security clearance appeal (2014) · CASE

ISCR Case 11-09219.a1unknown

Case headnote

ISCR Case No. 11-09219.a1

Mar 31, 2014· Hon. Jeffrey D. Billett· appeal

Summary

This case involves an applicant, a former military member and current employee, who was seeking a security clearance. The central issue fell under Guideline K, concerning the handling of protected information, specifically classified material. The applicant was found to have committed security violations, raising Disqualifying Conditions 34(c), 34(g), and 34(h).

While Mitigating Condition 35(a) was applied, the appeal board ultimately remanded the case. The board determined that the judge's analysis of the applicant's pattern of violations was insufficient. This lack of thorough analysis meant the judge did not adequately assess the implications of these violations for the applicant's reliability and judgment.

Consequently, the decision to grant a security clearance was deemed unsustainable based on the totality of the record evidence. The outcome of the case was none, indicating that a final determination on the clearance was not reached at this stage.

Conditions referenced

Disqualifying

34(c)raisedHandling Classified Information on Unapproved Equipment
34(g)raisedFailure to Comply with Rules for the Protection of Classified Information
34(h)raisedNegligence or Lax Security Habits

Mitigating

35(a)appliedTime Elapsed Since BehaviorThe judge noted that the applicant's actions were mostly due to negligence and occurred more than three years ago.

Key rule quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”
Directive, Enclosure 2 ¶ 2(b)

Procedural posture

SOR issuedAug 7, 2013
Answer filed—
Hearing heldDec 23, 2013
Decision dateMar 31, 2014Remanded for new decision.

Cite for

Inadequate Analysis of Security Violations Under Guideline K
Importance of Cumulative Evidence in Security Clearance Cases
Remand for Failure to Consider Significant Aspects of the Case

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

Remanded

The appeal involved a security clearance decision where the Administrative Judge granted the Applicant a clearance despite multiple security violations. The Department Counsel appealed, arguing that the Judge's decision was arbitrary and capricious. The Board agreed, finding that the Judge's analysis did not adequately address the implications of the Applicant's violations, and remanded the case for a new decision.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowRichard A. Cefola granted the clearance

Decided ona hearing

Guidelines belowGuideline K

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the Government (Department Counsel)Error sustained
The Judge's analysis was arbitrary and capricious as it failed to adequately explain why the Applicant's security violations do not cast lingering doubt on her judgment and reliability.

Why the Board ruled this way

The Board found that the Judge's analysis was insufficient and failed to consider significant evidence regarding the Applicant's security violations, necessitating a remand for a new decision.

Ignored material evidenceNo rational connection between facts and conclusion

On remand, the judge must

The Judge must provide a new decision that adequately addresses the errors identified, particularly regarding the Applicant's security violations and their implications for her judgment and reliability.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural compliance

Appeal Board panel

Michael Y. Ra’anan (Chair)
Jeffrey D. Billett
James E. Moody
Included a dissent

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: The Judge’s analysis does not adequately explain why Applicant’s security violations do not cast lingering doubt on her judgment and reliability. The Judge’s mitigation and whole- person analysis fail to consider important aspects of the case. The best resolution of this appeal is to remand the case to the Judge for a new decision that corrects these errors. Affirmative decision remanded, CASENO: 11-09219.a1 DATE: 03/31/2014 DATE: March 31, 2014 In Re: --------------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-09219

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Jeffrey Nagel, Esq., Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On August 7, 2013, DoD 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). Applicant requested a hearing. On December 23, 2013, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Richard A. Cefola granted Applicant’s request for a security clearance. Department Counsel appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issue on appeal: whether the Judge’s decision was arbitrary, capricious, or contrary to law. Consistent with the following, we remand the case to the Judge. The Judge’s Findings of Fact Applicant served in the U.S. military from 1984 until 1987. She held a security clearance while on active duty. In 2001, she began working for an employer in a job requiring a clearance. She had no security violations during this period of employment. In 2004, she began working for another employer, again in a position requiring a clearance. From April 2008 until July 2010, Applicant had five security violations. The first two, both in 2008, involved her failure properly to secure her workplace upon leaving. The earlier of these two offense resulted in a verbal warning, the later in a verbal and a written warning. The third incident occurred in 2009. Applicant put a file on a CD and inserted the CD into an unclassified network. She discovered that the file was classified, so she disconnected the network, shut down the computer, and notified the appropriate security authorities. She received a written memorandum of concern as a result of this infraction. In March 2010, Applicant failed to secure a classified tape, though it was eventually found. As a result of this incident, Applicant received security training. Finally, in July 2010, Applicant uploaded classified data into an unclassified network. She stated at the hearing that she and another person put a document on the network and later others discovered that the document should have been classified. She said, “[J]ust because you don’t know doesn’t mean its okay.” Decision at 3. Since beginning work for her current employer in 2010, Applicant has had no further security incidents. Her supervisor finds her to be trustworthy. The Judge’s Analysis

FOOTNOTES

1 Directive, Enclosure 2 ¶ 34(c): “loading . . . storing, transmitting, or otherwise handling classified . . . information on any unapproved equipment . . .”

2 Directive, Enclosure 2 ¶ 34(g): “any failure to comply with rules for the protection of classified or other sensitive information[.]”

3 Directive, Enclosure 2 ¶ 34(h): “negligence or lax security habits that persist despite counseling by management[.]”

4 Directive, Enclosure 2 ¶ 35(a): “so much time has elapsed since the behavior, or it has happened so infrequently or under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment[.]” The Judge found that Applicant’s circumstances raised three Guideline K disqualifying conditions: 34(c),1 34(g),2 and 34(h).3 Explaining his conclusion that Applicant had mitigated the concerns arising from her security incidents, the Judge applied Guideline K mitigating condition (MC) 35(a).4 His pertinent analysis consisted of the following: Applicant’s actions were, for the most part, due to negligence, and they occurred more than three years ago. She has now been a most reliable and trustworthy employee for her current employer, as attested by her supervisor. Decision at 5. In the whole-person analysis, the Judge listed the factors set forth in Directive, Enclosure 2 ¶ 2(a). He then stated that, having considered all of the evidence, he was left without questions or doubts as to Applicant’s worthiness for a clearance. Discussion The standard applicable in security clearance decisions “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). “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Directive, Enclosure 2 ¶ 2(b). In deciding whether the Judge's rulings or conclusions are erroneous, we will review the Judge's decision to determine whether, inter alia, it does not consider relevant factors or it fails to consider an important aspect of the case. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). Department Counsel argues that the Judge’s analysis is “sparse” and “fails to consider the cumulative significance of the record evidence of Applicant’s pattern of security violations.” Appeal Brief at 9. He contends that the weight of the record evidence does not support a favorable application of any of the mitigating conditions and that the Judge employed a “piecemeal” analysis. We find portions of Department Counsel’s argument to be persuasive. Once it is established that an applicant has committed security violations, he or she has a “very heavy burden” to surmount in mitigating the concerns arising therefrom, insofar as security violations “strike at the heart of the Industrial Security Program.” ISCR Case No. 10-07070 at 8-9 (App. Bd. Apr. 19, 2012); see also ISCR Case No. 10-04911 at 5 (App. Bd. Dec. 19, 2011).

5 GE 7, Report of Investigation, dated April 19, 2010:“[Applicant] was initially granted access to classified materials as [an employee] in 2004, following that initial indoctrination briefing [Applicant] has completed annual security clearance refresher training. In addition to the standard security clearance briefing [Applicant] has also complete[d] security briefings for access to classified safes/container, closed areas, and classified information systems.”

6 Applicant’s explanations for her conduct–dropping her phone, forgetting her keys, failing to double check her work–describe characteristics that appear to be habitual in nature rather than the products of stresses or circumstances that were short-lived and/or demonstrably consigned to the past. GE 4 at 4; GE 5 at 8; GE 6 at 6. In this case, the Judge’s analysis failed to address significant record evidence, such as the number of infractions committed by Applicant and that these infractions occurred despite prior training. For example, the incident report for the first offense outlines company policies regarding the protection of classified information. This report contains a signed statement by Applicant acknowledging this policy and her responsibilities to uphold them. Final Report of Investigation, dated April 23, 2008, included in Government Exhibit (GE) 4. A later Report of Investigation contains a recitation of Applicant’s security training, demonstrating that it was ongoing and of a nature to have placed her on notice of the need for vigilance in protecting classified information.5 Moreover, the record demonstrates that Applicant’s subsequent offenses occurred against a background of repeated verbal and written corrective action. The extent to which Applicant had been placed on notice of the security requirements of her job, and to which she received adverse action regarding her infractions, are relevant in evaluating the seriousness of her conduct. This evidence is crucial to an adequate mitigation analysis, bearing as it does on the foreseeability of future misconduct that strikes at the heart of the security clearance process.6 The Judge’s analysis makes no reference to this evidence, nor does it examine the evidence as a whole in light of Applicant’s “heavy burden” of persuasion. In other cases decided under the Directive, applicants were denied a clearance based on conduct that presents a likelihood that they may fail to protect classified information in the future. In the case before us, however, Applicant has actually failed to protect classified information multiple times, on one occasion leaving a room unsecured from 1:43 pm to 7:40 am the following day. GE 4. The Judge’s analysis does not adequately explain why these violations do not cast lingering doubt on her judgment and reliability. Moreover, the Judge does not explain in what sense Applicant’s negligence is mitigating, in light of his application of disqualifying condition 34(h). The Judge’s mitigation and whole-person analyses fail to articulate a satisfactory explanation for his ultimate conclusion and fail to consider important aspects of the case. Given the totality of the record evidence, the decision as it stands is not sustainable. We conclude that the best resolution of this appeal is to remand the case to the Judge for a new decision that corrects the errors raised above. Order The Decision is REMANDED. 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 Dissenting Opinion of Administrative Judge James E. Moody I agree with my colleague’s discussion of the errors contained in the Judge’s decision. However, I conclude that the record will not support a favorable result, in light of the heightened scrutiny appropriate to security violation cases. I would reverse the Judge’s decision. Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board