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ISCR Case 14-06508.a1 — CASE

ISCR Case 14-06508.a1denied

Case Headnote

ISCR Case No. 14-06508.a1

Jun 17, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied under Guideline E (Personal Conduct) due to serious disqualifying conduct involving financial misconduct related to a relocation package. The judge found the applicant's testimony inconsistent and not credible, specifically citing Disqualifying Condition E2.A5.1.

Despite the applicant presenting mitigating evidence, the judge determined it was insufficient to outweigh the government's security concerns. The judge applied Mitigating Condition E3.A5.2 but ultimately concluded that the applicant's conduct warranted denial.

The denial was upheld because the applicant failed to demonstrate that the judge's decision was arbitrary or capricious. The core reasons for denial were the applicant's lack of credibility and the insufficient weight of the mitigating evidence against the serious personal conduct issues.

Conditions Referenced

Disqualifying

E2.A5.1raisedPersonal Conduct

Mitigating

E3.A5.2rejectedMitigating EvidenceThe judge found the mitigating evidence insufficient to overcome the government's security concerns.

Key Rule Quoted

“The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision.”

Procedural Posture

SOR issuedMay 29, 2015
Answer filed—
Hearing heldApr 25, 2016
Decision dateJun 17, 2016

Cite For

Insufficient Mitigating Evidence Under Guideline E
Credibility Assessment of Applicant's Testimony
Weighing of Evidence in 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 an applicant seeking a security clearance who was denied by an Administrative Judge based on security concerns under Guideline E. The applicant argued that the Judge's decision was arbitrary and capricious, citing mitigating evidence. The Board affirmed the decision, finding no harmful error in the Judge's weighing of the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran — denied the clearance

Decided ona hearing

Guidelines belowGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge weighed the evidence appropriately and articulated a satisfactory explanation for his decision, concluding that the favorable evidence did not outweigh the unfavorable evidence.

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 Ra’anan — Chair
Catherine M. Engstrom
William S. Fields

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 E DIGEST: The presence of some mitigating evidence does not alone compel the Judge to make a favorable decision. The Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. A party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. Adverse decision affirmed. CASENO: 14-06508.a1 DATE: 06/17/2016 DATE: June 17, 2016 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-06508

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 May 29, 2015, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Department Counsel requested a hearing. On April 25, 2016, after the hearing, Administrative Judge Edward W. Loughran denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse clearance decision is arbitrary, capricious or contrary to law. In his Appeal Brief, Applicant reiterates his interpretation of the evidence elicited at the hearing and acknowledges “making an error in judgment.”1 Applicant’s Brief at 2. However, he argues that the Judge should have given greater weight to his long history as a government contractor and to five character reference letters from managers that had known him for years.2 Id. at 2-3. Those letters were admitted into evidence as Applicant’s Exhibit C. Decision at 2; Tr. at 20- 21. Applicant has not demonstrated that the Judge’s decision is arbitrary, capricious or contrary to law. Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. A party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). In this case, the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. He reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns.3 Decision at 5-7. The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for his 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 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). Therefore, the Judge’s decision is sustainable.

ORDER

The decision is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Catherine M. Engstrom Catherine M. Engstrom Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board

FOOTNOTES

1 The Judge found that Applicant had accepted a relocation package from his company that required him to move close to a facility that was about 90 miles from where he lived. He accepted more than $43,000 to relocate, but then did not move. He submitted a one-year lease of a home within the geographic area of the new work location, but then did not move into that home. After the relocation package was finalized and closed, he collected more than $7,000 for hotel stays, mileage from his home, and per diem, for which he was not entitled. Decision at 5.

2 Applicant states that he was “very flustered” by the “atmosphere” of the hearing setting which he found “very intimidating.” Applicant’s Brief at 2. However, he makes no specific assertion of denial of due process and none is evident from a review of the transcript. Applicant testified extensively on his own behalf and offered multiple documentary exhibits, all of which were admitted into evidence without objection. The record indicates that Applicant received a full and fair hearing.

3 In particular, the Judge found Applicant’s testimony “inconsistent, not credible, and contradicted by his company’s relocation plan.” The Judge “[could] not accept that a person of Applicant’s age, education, experience, and tenure with his company would believe that his company would pay him [more than $43,000] to move to the location of another facility, and then also pay him mileage, hotel costs, and per diem at the facility’s location.” Decision at 6.