CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 14-06958.a1 — CASE

ISCR Case 14-06958.a1denied

Case Headnote

ISCR Case No. 14-06958.a1

Oct 28, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

The applicant, a naturalized U.S. citizen originally from South Korea, was denied a security clearance under Guideline B (Foreign Influence). The denial stemmed primarily from her ongoing contact with relatives in South Korea, including one who was a government contractor and another who was a South Korean government employee. These connections raised disqualifying conditions regarding potential foreign influence.

Further concerns arose from the applicant's involvement in a prior security violation, which cast doubt on her discretion concerning classified information. While some mitigating conditions were considered, they were insufficient to overcome the significant issues identified.

Ultimately, the judge determined that the applicant failed to meet her burden of persuasion regarding the foreign influence concerns. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 7raisedForeign Influence
AG ¶ 6raisedSecurity Violations

Mitigating

AG ¶ 8rejectedMitigating ConditionsThe judge found that while some concerns were mitigated, others remained significant.

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 22, 2015
Answer filed—
Hearing heldAug 16, 2016
Decision dateOct 28, 2016

Cite For

Foreign Influence Concerns Under Guideline B
Impact of Security Violations on Clearance Decisions
Discretion of Judges in Weighing Mitigating Factors

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 for a security clearance who was denied due to concerns under Guideline B (Foreign Influence). The applicant argued that the Judge's adverse decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding that the Judge's analysis was reasonable and within his discretion.

Appealed bythe applicant

Applicant representationAttorney

Judge belowFrancisco Mendez — denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline B

What the Board reviewed

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 and analysis provided a reasonable basis for his conclusions, and it is within a Judge’s discretion to conclude that an applicant has mitigated some allegations but not others.

Standard of review applied

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

Appeal Board panel

Michael Y. Ra’anan — Chair
James E. Moody
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 B DIGEST: It is within a Judge’s discretion to conclude that an applicant has mitigated some of the allegations against him but not others. Adverse decision affirmed. CASENO: 14-06958.a1 DATE: 10/28/2016 DATE: October 28, 2016 In Re: ----

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-06958

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 August 22, 2015, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On August 16, 2016, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Francisco Mendez 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 The Judge made the following findings pertinent to the issue raised on appeal: Applicant works for a Defense contractor. She has held a clearance since 2002. Applicant was born in South Korea and became a naturalized U.S. citizen in the late 1990s. She maintains contact with several relatives in South Korea. She has a cousin whose spouse works for a contractor of the South Korean government. Another relative works for the South Korean government itself. Applicant admitted that, when asked by her relatives, what she does for a living, she provided an answer that could have alerted them to the fact that she holds a security clearance. She also was involved in a security violation in 2013. She had been in charge of a locked, classified filing cabinet. It was discovered that the log pertaining to the cabinet contained an error about the status of a classified document. As a consequence of this infraction, Applicant’s employer changed the combination to the lock and required Applicant to request assistance of another employee whenever she needed access.1 The Judge’s Analysis The Judge cleared Applicant regarding allegations about the citizenship status of her mother and children. However, he entered adverse findings regarding an allegation about Applicant’s contact with citizens and residents of South Korea, including the government contractor, and another concerning the employee of the South Korean government. In concluding that Applicant had not mitigated concerns arising from these foreign connections, the Judge cited to evidence of her security violation and her possible lack of discretion in comments about the nature of her job. He stated that a Judge must resolve doubts in favor of national security. Accordingly, he concluded that Applicant had not met her burden of persuasion.

DISCUSSION

Applicant notes that the Judge found Applicant’s evidence sufficient to mitigate some of the concerns raised by the SOR. She contends it was not consistent for the Judge to have entered adverse findings regarding the other ones. We have considered the Judge’s decision in light of the entirety of the record. His findings and analysis provide a reasonable basis for his ultimate conclusions. It is within a Judge’s discretion to conclude that an applicant has mitigated some of the allegations against him but not others. See, e.g., ISCR Case No. 14-03747 at 2 (App. Bd. Nov. 13, 2015). Applicant has cited to Hearing Office cases in support of her effort to maintain her clearance. We give these cases due consideration, but Hearing Office decisions are not binding on other Hearing Office Judges or on the Appeal Board. See, e.g., Id. at 3. Applicant’s appeal brief consists in large measure of a challenge to the Judge’s weighing of the evidence, including evidence about her indiscreet disclosure of the nature of her duties. An ability to argue for a different interpretation of the evidence in not enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-06686 at 2 (App. Bd. Apr. 27, 2016). 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board

FOOTNOTES

1 Applicant’s disclosures about her job and her security infraction were not alleged in the SOR. The Judge stated that he was considering them for the limited purpose of evaluating Applicant’s case for mitigation and for performing a whole-person analysis. Decision at 5, Note 8. See ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006).