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ISCR Case 14-06751.a1 — CASE

ISCR Case 14-06751.a1denied

Case Headnote

ISCR Case No. 14-06751.a1

Jun 29, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance for a contractor who worked in Kyrgyzstan was denied under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The applicant maintained a significant relationship with a Kyrgyz national, which included sexual activity and ongoing communication. This relationship raised security concerns, particularly as the applicant provided financial support to the foreign national.

The applicant failed to disclose this relationship to his employer and continued it even after being advised of potential security risks. The judge determined that the applicant's ongoing communication and financial support to the foreign national, despite awareness of the security implications, outweighed his U.S. connections.

Disqualifying conditions AG B1 and AG E2 were raised. The appeal board affirmed the denial, concluding there was substantial evidence to support the judge's findings regarding the applicant's foreign influence and personal conduct issues.

Conditions Referenced

Disqualifying

AG B1raisedForeign Influence
AG E2raisedPersonal 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 issuedJun 15, 2015
Answer filed—
Hearing heldMar 31, 2016
Decision dateJun 29, 2016

Cite For

Significant Foreign Influence Under Guideline B
Personal Conduct Issues Under Guideline E
Substantial Evidence Standard in Security Clearance Cases

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 Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The applicant argued that the Judge's findings were not supported by substantial evidence and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding the material findings sustainable based on the evidence presented.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJuan J. Rivera — denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge's findings were not based on substantial evidence.
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.

Why the Board ruled this way

The Board found that the Judge's findings were based on substantial evidence and articulated a satisfactory explanation for the decision. The adverse decision was independently sustainable under Guideline E, thus affirming the denial of the security clearance.

Standard of review applied

Substantial-evidence reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael Y. Ra’anan — Chair
James E. Moody
Catherine M. Engstrom

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 findings capture the essence of Applicant’s hearing testimony. After reviewing the record, we conclude that the Judge’s material findings are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. Considering the record evidence as a whole, the Judge’s material findings of security concern are sustainable. Favorable decision affirmed CASE NO: 14-06751.a1 DATE: 06/29/2016 DATE: June 29, 2016 In Re: ------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-06751

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Gregory F. Greiner, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On June 15, 2015, 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 March 31, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Juan J. Rivera 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 were supported by substantial evidence 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 has been married to his current wife for about 20 years. During most of 2013, he worked for a contractor supporting U.S. interests in Kyrgyzstan. He met a woman, a citizen and resident of Kyrgyzstan, and hired her as a housekeeper and cook. Two weeks after he met her, Applicant and the woman engaged in sexual activity. Sometimes after she cooked dinner, the two ate together. He paid her $200 monthly and gave her $200 severance pay. He left Kyrgyzstan at the end of 2013. Later the following year, Applicant gave the woman $500 on the anniversary of her father’s death. He maintained contact with her after he left Kyrgyzstan, considering her to be a friend. They communicated over Skype or text messaging, most recently two months before the hearing. He stated that he would end his relationship with her if that were necessary in order to keep his clearance. At the time of his clearance interview in 2014, Applicant’s spouse was not aware of his relationship with the woman. He did not disclose his relationship with the woman to his employer, although he stated in his security clearance application that she was a friend. He stated that he stopped the sexual part of his relationship with her before it became a security concern. He knew that other employees were in trouble because of their relationships with foreign nationals. Applicant enjoys a good reputation for the quality of his work performance and for his ability to work with others. He is also considered diligent, punctual, and conscientious. The Judge’s Analysis Under Guideline B, the Judge concluded that Applicant’s connections with the woman “are significant.” Decision at 8. He frequently communicated with her, gave her money, and did not end the communications even after receiving the SOR and after his wife discovered his conduct. He concluded that Applicant’s relationship with the woman outweighs his connections in the U.S. Regarding Guideline E, the Judge stated that Applicant engaged in sexual activity with the woman while in Kyrgyzstan, despite his knowledge that relationships with foreign nationals posed security concerns. He continued his contact with her, even after his spouse objected. In the whole-person analysis, the Judge reiterated his findings about Applicant’s relationship with the woman. He stated, that the woman “visited Applicant’s apartment in Kyrgyzstan about twice a week from September to December 2013. He engaged in sexual activity with her.” Id. at 10.

DISCUSSION

Applicant argues that the Judge’s findings are not based upon substantial evidence. He states that he did not have a sexual or romantic relationship with the woman. Rather, they had a single sexual encounter. 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. See ISCR Case No. 14-04226 at 3 (App. Bd. Aug. 18, 2015). The Judge’s findings include only one incident of sexual activity between Applicant and the woman. However, he also found that Applicant and she had an ongoing relationship that was of a personal, rather than strictly professional, nature, despite his having hired her as a housekeeper. The Judge’s findings capture the essence of Applicant’s hearing testimony. After reviewing the record, we conclude that the Judge’s material findings are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from the record. Considering the record evidence as a whole, the Judge’s material findings of security concern are sustainable. See, e.g., ISCR Case No. 12-03420 at 3 (App. Bd. Jul. 25, 2014). The Judge examined the relevant data and articulated a satisfactory explanation for the decision.1 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

FOOTNOTES

1 The record contains no official notice documents describing the geopolitical situation in Krygyzstan, and the Judge made no findings on this matter. The Directive requires that adjudication under Guideline B should take into account such things as “whether the foreign country is known to target United States citizens to obtain protected information and/or is associated with a risk of terrorism.” Enclosure 2 ¶ 6. In the past we have remanded cases for the Judge to make findings about the country at issue. See, e.g., ISCR Case No. 07-14508 (App. Bd. Oct. 22, 2008). In the case before us, however, the Judge’s adverse decision is independently sustainable under Guideline E. Therefore, there is no reason to remand the case for further processing. Signed: Catherine M. Engstrom Catherine M. Engstrom Administrative Judge Member, Appeal Board