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ISCR 13-00676.a1: Guideline K security clearance appeal, denied (2014) · CASE

ISCR Case 13-00676.a1denied

Case headnote

ISCR Case No. 13-00676.a1

Jun 13, 2014· Hon. Michael Y. Ra'anan· appeal

Summary

A defense contractor's security clearance was denied under Guideline K (Handling Protected Information) due to a pattern of security violations occurring between 2006 and 2012. The applicant committed four distinct violations over this six-year period.

These violations included leaving classified materials unsecured and installing unapproved software on secure systems. While there was no evidence that classified information was actually compromised, the repeated nature of these incidents was a significant concern.

The adjudicating authority determined that the applicant's actions demonstrated a consistent lack of appropriate security awareness. This pattern raised serious doubts regarding the applicant's judgment and reliability, ultimately leading to the denial of the security clearance.

Conditions referenced

Disqualifying

K.1raisedHandling Protected Information

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 23, 2013
Answer filed—
Hearing heldMar 24, 2014
Decision dateJun 13, 2014

Cite for

Security Violations Under Guideline K
Impact of Repeated Security Violations on Judgment and Reliability
Standard for Granting Security Clearances in Relation to National Security Interests

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 four security violations committed by the applicant between 2006 and 2012. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful error in the Judge's analysis of the applicant's security violations.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowElizabeth M. Matchinski denied the clearance

Decided ona hearing

Guidelines belowGuideline K

What the Board reviewed

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 that the Judge's decision was supported by substantial evidence and that the applicant's security violations raised significant concerns about his judgment and reliability.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Michael Ra’anan (Chair)
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 has committed four security violations between 2006 and 2012. Adverse decision affirmed. CASENO: 13-00676.a1 DATE: 06/13/2014 DATE: June 13, 2014 In Re: ----------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 13-00676

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On August 23, 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 March 24, 2014, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Elizabeth M. Matchinski denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: 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 committed four security violations while working in a classified location for his current employer, a Defense contractor. In 2006, he left a classified backup tape on a bench in the classified location. In 2012, he committed three violations. He failed to secure the lock on the door to the classified location, he left six classified hard drives in a closed area overnight without properly storing them, and subsequently installed unapproved software on a classified information system. None of these infractions resulted in actual compromise of classified information. The first three instances resulted in disciplinary action and/or additional security training for Applicant. After the last one, Applicant’s employer submitted an “individual culpability report to the DoD.” Decision at 4. Applicant posted a list of rules regarding acceptable use of information systems to ensure that he complied with security requirements. A few months later, DoD suspended Applicant’s security clearance. His employer reassigned him to a program that does not require a clearance. However, he testified that he was “able to do classified work with somebody else on [his] program.” Id. at 5. By that he meant that he was permitted to work in the classified location but only when accompanied by a cleared escort. He did not actually have access to classified documents. The Judge’s Analysis In concluding that Applicant had not mitigated the concerns arising from his security violations, the Judge noted that at least two of them were similar and, therefore, of a recurring nature. She stated that Applicant did not appear to have responded favorably to remedial training, given the number of violations found against him, and that the evidence was such that “concerns persist that he lacks appropriate security awareness.” Id. at 9. The Judge noted Applicant’s testimony that he is permitted to do classified work. Although he subsequently clarified that to mean that he merely had access to computer hardware that, though classified, was not visually classified, “he should have recognized that describing his work as classified . . . was inappropriate and could raise security flags.” Id. The Judge concluded that Applicant’s violations could not be blamed on poor security training. In the whole-person analysis, the Judge stated that the commission of three security violations in six months casts “serious doubt” on Applicant’s judgment and reliability. Id. at 10. The Judge noted that, were Applicant’s access to classified information to be restored, he may well resume duties which have, in the past, been performed without direct oversight. As it stands, the evidence does not lead to a conclusion that Applicant has sufficient awareness to recognize potential security issues and, therefore, seek appropriate guidance.

DISCUSSION

Applicant challenges the Judge’s comment about his working in a classified location despite his own clearance having been suspended. He stated that he did not actually have access to any classified documents and argues that the Judge misinterpreted his comment. We have examined the Judge’s statements about this matter in light of her Decision as a whole. Although she did find Applicant’s claim to be sufficiently problematic so as to require further clarification from him, we find no reason to believe that she ultimately misinterpreted the comment or attributed additional security violations to him. She merely stated that the way in which Applicant initially worded the comment could lead to misunderstanding. We find no reason to believe that the Judge exaggerated the extent of Applicant’s security-significant conduct or that she weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 10-07881 at 2 (App. Bd. Oct. 5, 2012). The gravamen of the Judge’s decision was that, despite adequate training and corrective action, Applicant had committed a series of security violations, impugning his judgment and reliability. This analysis was consistent with the record that was before the Judge. Security violations strike at the heart of the Industrial Security Program, and an applicant who has committed such violations has a “very heavy burden” in attempting to demonstrate mitigation. See, e.g., ISCR Case No. 11-09219 at 3 (App. Bd. Mar. 31, 2014). 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 Ra’anan Michael Ra’anan Administrative Judge Chairperson, 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