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ISCR Case 12-03402.a1 — CASE

Case record

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

Decision Date5/4/2016
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 12-03402.h1) →
Participants
Judge: Michael Y. Ra'anan, James E. Moody, James F. Duffy
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline KHandling Protected Information · Against Applicant
- Guideline MUse of Information Technology · 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 12-03402.a1denied

Case Headnote

ISCR Case No. 12-03402.a1

May 4, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

The applicant, represented by counsel, was denied a security clearance under Guidelines E (Personal Conduct), K (Handling Protected Information), and M (Use of Information Technology). The denial stemmed from multiple instances of misconduct that raised significant concerns about the applicant's reliability and trustworthiness.

Specifically, the applicant knowingly transmitted classified information via email using an unclassified computer. Furthermore, the applicant accessed and viewed pornographic material on a work computer, an action for which he received a written reprimand. A critical factor in the denial was the applicant's failure to report the improper transmission of classified information for over three years.

The judge determined that these actions, particularly the serious nature of the violations and the extended delay in reporting, demonstrated a lack of judgment and integrity. Consequently, the security clearance was denied, as the applicant's conduct did not meet the standards required for access to protected information.

Conditions Referenced

Disqualifying

AG KraisedHandling Protected Information
AG MraisedUse of Information Technology Systems
AG EraisedPersonal 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 issuedOct 3, 2014
Answer filed—
Hearing heldFeb 26, 2016
Decision dateMay 4, 2016

Cite For

Serious Nature of Violations Under Guideline K and M
Lack of Effective Mitigation in Security Clearance Cases
Emphasis on National Security Interests in 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 security concerns under Guidelines K, M, and E. The applicant argued that the Judge made factual errors and that the decision was arbitrary and capricious. The Board affirmed the decision, finding the errors harmless and the Judge's analysis sustainable.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRichard A. Cefola — denied the clearance

Decided onthe written record

Guidelines belowGuideline KGuideline MGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge's findings of fact contained errors.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge's error regarding the applicant's knowledge was harmless, as the decision would have been the same based on other factors. The Judge's analysis was deemed sustainable based on the totality of the circumstances.

Standard of review applied

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

Appeal Board panel

Michael Y. Ra’anan — Chair
James E. Moody
James F. Duffy

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; Guideline M; Guideline E DIGEST: We conclude that the Judge would have denied Applicant a clearance even if he had not made the factual error, thus the error is harmless. Adverse decision affirmed. CASENO: 12-03402.a1 DATE: 05/04/2016 DATE: May 4, 2016 In Re: ---------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-03402

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On October 3, 2014, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline K (Handling Protected Information), Guideline M (Use of Information Technology Systems), and 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 February 26, 2016, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Richard A. Cefola 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 findings of fact contained errors and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant admitted that, in 2007, he knowingly and improperly transmitted classified information via email on an unclassified computer. He did not report this until mid-January 2011, three days before a polygraph examination. In addition, some time prior to his January 2011 polygraph, Applicant accessed and viewed pornographic material on a work computer. He received a written reprimand for this infraction. The Judge’s Analysis The Judge concluded that Applicant had not mitigated the concerns arising from his misconduct. He noted that the email transmission occurred in 2007. However, the Judge stated that Applicant waited over three years to report it, although he had many opportunities to do so. He also concluded that the misuse of Applicant’s work computer was not mitigated. “[W]hen coupled with his mishandling of protected information . . . it is too soon to say that it does not cast doubt” upon Applicant’s reliability, trustworthiness, and good judgment. Decision at 4.

DISCUSSION

Applicant challenges the finding that he had admitted to having knowingly transmitted classified information over an unclassified computer. We examine a Judge’s findings to see if they are supported by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” Directive ¶ E3.1.32.1. Applicant’s argument has merit. In his SOR response he admitted that he improperly emailed a classified document, but neither the allegation itself nor the admission state that this was a knowing act. Item 7, a JPAS entry, states that Applicant found out about the classified nature of the email only after he had transmitted it. Therefore, the Judge’s finding that Applicant acted with knowledge is not sustainable. However, the Judge’s analysis did not cite to Applicant’s purported knowledge but, rather, to the length of time that Applicant waited before reporting the violation. Furthermore, the totality of the Judge’s analysis put as much or more emphasis on Applicant’s access of pornography. We conclude that the Judge would have denied Applicant a clearance even if he had not made the factual error in question. Therefore, we conclude that the error is harmless. See, e.g., ISCR Case No. 14-03601 at 3 (App. Bd. Jul. 1, 2015). Applicant challenges the Judge’s mitigation analysis. Among other things, he cites to the length of time that has elapsed since his security-significant conduct. He argues that this lapse of time without a subsequent offense demonstrates rehabilitation. Questions surrounding the recency of security-significant conduct must be evaluated in light of the evidence as a whole. See, e.g., ISCR Case No. 05-00448 at 3 (App. Bd. Oct. 1, 2007). In this case, the very nature of a Guideline K infraction is a matter entitled to considerable weight. As we have noted before, once it is established that an applicant has committed a security violation, he or she has a “very heavy burden” of persuasion as to mitigation. Such violations “strike at the heart of the industrial security program.” Accordingly, a Judge must give any claims of reform or rehabilitation “strict scrutiny.” ISCR Case No. 11-09219 at 3 (App. Bd. Mar. 31, 2014). In this case, the Judge’s finding that Applicant failed to disclose a security breach for several years, coupled with other findings regarding Applicant’s use of a work computer to access pornography, support his conclusion that Applicant’s conduct continues to cast doubt upon his fitness for a clearance. We conclude that the Judge’s mitigation analysis, viewed as a totality, is sustainable. Applicant has cited to a Hearing Office case that he believes supports his effort to obtain a favorable decision. We give this case due consideration as persuasive authority. However, Hearing Office decisions are not binding on other Hearing Office Judges or on the Appeal Board. See, e.g., ISCR Case No. 14-03747 at 3 (App. Bd. Nov. 13, 2015). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The 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 Decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board