CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 11-15184.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date7/25/2013
Statusunknown
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionsSee the hearing decision (Case 11-15184.h2) →See the hearing decision (Case 11-15184.h1) →
Participants
Judge: Jeffrey D. Billett, James E. Moody, William S. Fields
Government Counsel: John Bayard Glendon
Guidelines Evaluated
- Guideline BForeign Influence · For Applicant
- Guideline EPersonal Conduct · Against Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
Finding similar decisions…

ISCR Case 11-15184.a1unknown

Case Headnote

ISCR Case No. 11-15184.a1

Jul 25, 2013· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, represented by counsel, faced security clearance concerns under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). These concerns arose from the applicant's unauthorized use of a proxy server for personal business while employed by a Defense contractor.

The appeal board remanded the adverse decision, citing a significant error in the judge's misstatement of the applicant's employment duration. This misstatement was deemed to have affected the analysis of mitigating factors under Guideline E. Specifically, the judge had concluded that the applicant failed to demonstrate mitigation under Guideline E due to the recency of his misconduct, applying disqualifying condition E2.A5.1.1 and considering mitigating condition E2.A5.1.3.

As a result of the remand, no final security clearance outcome has been reached at this stage.

Conditions Referenced

Disqualifying

E2.A5.1.1raisedPersonal Conduct

Mitigating

E2.A5.1.3rejectedMitigating Condition 17(c)The judge's analysis was based on an incorrect employment duration.

Procedural Posture

SOR issuedSep 4, 2012
Answer filed—
Hearing heldMay 31, 2013
Decision dateJul 25, 2013Appeal board remanded the case.

Cite For

Remand Due to Misstatement of Employment Duration Affecting Mitigation Analysis
Upheld Favorable Findings Under Guideline B
Denied Mitigation Under Guideline E Due to Recency of Misconduct

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 denial of a security clearance based on concerns under Guideline B and Guideline E. The Applicant argued that the Judge made a factual error regarding the length of time he had worked at his current job, which impaired the analysis of mitigating conditions. The Board found the error significant and remanded the case for a new decision.

Appealed bythe applicant

Applicant representationAttorney

Judge belowLeRoy F. Foreman — denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline E

What the Board reviewed

Erroneous finding of fact — raised by the applicantError sustained
The Judge misstated the period of time Applicant has worked at his current job as nine months.

Why the Board ruled this way

The Judge's analysis contained a factual error regarding the duration of Applicant's employment, which affected the application of mitigating conditions. The Board found this error significant and not harmless, necessitating a remand for a new decision.

Ignored material evidence

On remand, the judge must

The Judge must issue a new Decision consistent with the findings of the Appeal Board.

Standard of review applied

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

Appeal Board panel

Jeffrey D. Billett
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 B; Guideline E DIGEST: The Judge’s analysis misstates the period of time Applicant has worked at his current job as nine months. The Board cannot conclude the error is harmless. Adverse decision remanded. CASENO: 11-15184.a1 DATE: 07/25/2013 DATE: July 25, 2013 In Re: ----------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-15184

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT John Bayard Glendon, Esq., Deputy Chief Department Counsel FOR APPLICANT Leslie McAdoo Gordon, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On September 4, 2012, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On May 31, 2013, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge LeRoy F. Foreman 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 made factual errors that impaired his application of Mitigating Condition 17(c) and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guideline B and his favorable findings under two of the three Guideline E allegations are not at issue in this appeal. Consistent with the following, we remand the case to the Judge. The Judge’s Findings of Fact The Judge found that Applicant has worked for a Defense contractor since August 2011. He previously worked for another Defense contractor from May 1983 to July 2011. In late 2010 or early 2011, Applicant gained access to a proxy server. This enabled him to bypass his employer’s restriction on accessing personal e-mail accounts while using his employer’s unclassified computer. The purpose of this restriction was to reduce the risk of introducing malware into the employer’s information technology systems. Applicant used the proxy server for his personal e-mail account, communicating with family and friends. At some point he began using it in connection with a personal business. This activity was uncovered by cyber-intelligence analysts conducting an investigation unrelated to Applicant. The investigation discovered that several employees, including Applicant, were using proxy servers to gain access to unauthorized internet sites. The analysts monitored Applicant’s computer for two weeks and discovered thirty-six hours of suspected non-work activity on his computer. Upon discovery that Applicant was “multi-tasking” during this two week period, they concluded that he had billed 16.9 hours of personal use, worth about $1,076, to the Government. Applicant admitted to having used the proxy server to access his person e-mail account, to running an outside business during the workday, and to having charged Government contracts for time spent on personal business. Applicant elected to resign in lieu of termination. According to a forensic examiner, Applicant’s use of the proxy server did not alter or damage his employer’s network in any way. He did not compromise or increase the vulnerability of the employer’s IT system. Applicant’s new job entails the same duties as the one from which he resigned. Although he continues to operate his personal business, he is not seeking new business. He is the sole employee and sole member of his personal company. Applicant enjoys an excellent reputation for his work performance, reliability, commitment to national security, and compliance with security policy. His current supervisor has known him for 20 years. He views Applicant’s circumvention of his employer’s internet restrictions as a one-time incident. The Judge’s Analysis As stated above, the Judge resolved the Guideline B allegations in Applicant’s favor, as he did with two of the allegations under Guideline E.1 Concerning the Guideline E allegation pertaining to Applicant’s having used the proxy server, however, the Judge concluded that Applicant had failed to demonstrate mitigation. In considering the possible effect of Mitigating Condition 17(c),2 the Judge stated as follows: Applicant’s use of the proxy server was recent. Although it ended about two years ago, it ended because he was caught in the act, not because he chose to stop. He has worked for his new employer for only about nine months, during which he has been under pressure to prove himself and keep his security clearance. Under the circumstances, I conclude that his misconduct has not been mitigated by the passage of time without recurrence. Decision at 12.

DISCUSSION

Applicant challenges the Judge’s treatment of Mitigating Condition 17(c), particularly the statement he had worked at his current job for only nine months. He notes record evidence that he had worked at this job since August 2011, nearly two years by the close of the record. He states that the error impaired the Judge’s analysis of the recency of Applicant’s security-significant conduct. We find this argument persuasive. In addition to the evidence cited by Applicant, we note the Judge’s own finding, referenced above, that Applicant had worked in his new job since August 2011, which was about twenty-one months, more than twice the amount of time upon which the Judge relied in his analysis. Accordingly, the Judge’s treatment of Mitigating Condition 17(c) was erroneous, and, reading the Decision in light of the record, we are not able to conclude that this error was harmless.3 See, e.g., ISCR Case No. 10-01021 at 3 (App. Bd. Nov. 18, 2011) (An error is harmless if it did not likely affect the outcome of the case). Accordingly, we remand the case to the Judge for a new Decision consistent with the above.4

ORDER

The Decision is REMANDED. Signed: Jeffery D. Billett Jeffrey D. Billett 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

FOOTNOTES

1 These other Guideline E allegations pertained to two security violations. The Judge concluded that these violations were isolated, inadvertent, and unlikely to recur.

2 Directive, Enclosure 2 ¶ 17(c): “the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment[.]”

3 Applicant also challenges the Judge’s statement that he had been under pressure at his new job to keep his security clearance. This statement constitutes a reasonable inference from the record before the Judge. We find no error in it.

4 In his reply brief, Department Counsel states that he does not object to a remand of the case.