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ISCR Case 15-04446.a1 — CASE

ISCR Case 15-04446.a1denied

Case Headnote

ISCR Case No. 15-04446.a1

Dec 22, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A U.S. military veteran, born in South Korea, was denied a security clearance primarily due to concerns under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The applicant's significant foreign contacts included a spouse and parents who reside in South Korea. Additionally, the applicant co-owned property in South Korea, a country identified as engaging in espionage against the U.S., which raised further foreign influence concerns.

Beyond foreign contacts, the applicant's military conduct history presented issues regarding maturity and reliability, falling under personal conduct concerns. While the appeal board found favorable conditions regarding Guideline F (Financial Considerations), these were insufficient to overcome the disqualifying conditions related to foreign influence and personal conduct.

Specifically, Disqualifying Conditions AG ¶ 6(a) and AG ¶ 15 were raised, with only Mitigating Condition AG ¶ 17(c) applied. Ultimately, the appeal board upheld the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 6(a)raisedForeign Influence
AG ¶ 15raisedPersonal Conduct

Mitigating

AG ¶ 17(c)rejectedMitigating Condition 17(c)The judge did not adequately discuss the mitigating condition related to the time elapsed since the applicant's military discharge.

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 issuedDec 9, 2015
Answer filed—
Hearing heldOct 19, 2016
Decision dateDec 22, 2016

Cite For

Significant Foreign Contacts Under Guideline B
Personal Conduct Issues Impacting Security Clearance
Mitigating Conditions Analysis Under Guideline E

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 concerns under Guideline B (Foreign Influence) and Guideline F (Financial Considerations). The applicant argued that the Judge's decision was arbitrary and capricious. The Board found that while the Judge erred in not considering a mitigating condition under Guideline E, the error was harmless, and thus affirmed the denial of the clearance.

Appealed bythe applicant

Applicant representationAttorney

Judge belowDarlene D. Lokey Anderson — denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
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 Judge erred by not considering Guideline E mitigating condition 17(c), but the error was deemed harmless as the outcome would not have changed. The adverse decision was affirmed based on substantial evidence supporting the findings under Guideline B.

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 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; Guideline F; Guideline E DIGEST: The Judge did not deny Applicant his right to submit evidence. The Judge erred by not considering Guideline E mitigating condition 17(c). However, had she done so the outcome of the case would have been the same. Therefore, the error is harmless. Hearing Office cases are not binding on other Hearing Office Judges or on the Appeal Board. Adverse decision affirmed. CASE NO: 15-04446.a1 DATE: 12/22/2016 DATE: December 22, 2016 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-04446

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 December 9, 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 F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). On February 23, 2016, Department Counsel moved to the amend the SOR by adding concerns under Guideline E (Personal Conduct). Applicant requested a hearing. On October 19, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Darlene D. Lokey Anderson 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. The Judge’s favorable findings under Guideline F are not at issue in this appeal. Consistent with the following, we affirm. The Judge’s Findings of Fact The Judge made the following findings pertinent to the issues raised on appeal: Applicant was born in South Korea to a U.S. father and a South Korean mother. Applicant’s father had moved to South Korea after leaving the U.S. military. Applicant was raised on U.S. military installations, and, as a teenager, he joined the U.S. military. He did so in order to provide financial assistance to his family. Due to such assistance, Applicant’s family was able to build a house in South Korea, of which Applicant is a co-owner. Applicant is married to a resident and citizen of South Korea. His wife has a sibling who works in that country, as do her parents. Applicant’s wife contacts her parents every day. Applicant’s father resides in South Korea and his mother is a citizen and resident of that country. He has advised both parents that he is applying for a security clearance. Applicant’s mother has an extended family in South Korea, with whom she maintains regular contact. South Korea is a stable democracy. However, it has a history of collecting U.S. protected information. It has centered its efforts on computer systems, aerospace technologies, and nuclear technologies. It is one of seven countries that is most engaged in economic and industrial espionage against the U.S. Applicant was administratively discharged from the U.S. military in 2006. The basis of the discharge was an instance of underage drinking and several instances of showing up late for mandatory formations. Applicant was punished under Article 15, UCMJ. Applicant attributed his chronic lateness to sleep apnea. He has recently been determined to have suffered from this while in the military. He is seeking to have his service characterization upgraded from a General to an Honorable. The Judge’s Analysis Applicant’s foreign contacts are significant. These include his wife, parents, and in-laws. In addition, he co-owns a home in South Korea and has provided his family with financial support. Applicant’s conduct while in the military showed immaturity. The Judge stated that she did not believe that Applicant’s alleged sleep apnea caused many of the infractions that led to his discharge. She stated that Applicant had not met his burden of persuasion that he should have a clearance.

DISCUSSION

Applicant cites to favorable evidence, such as his good security record. He argues that the Judge did not give him an opportunity to present administrative notice documents to rebut those submitted by the Government. He argues that the Judge’s mitigation analysis is flawed. Concerning Applicant’s right to submit evidence, we note that the Judge held the record open after the hearing to give him an opportunity to present additional documentation about the status of a debt to a credit union. She also advised Applicant that he could submit “any additional documents that you thought would be helpful.” Tr. at 71, 97. Applicant submitted four documents, which the Judge admitted. Decision at 2. There is nothing in the record to suggest that Applicant sought to submit other evidence, whether about the geopolitical situation of South Korea or anything else, much less that the Judge prevented him from doing so. There is no reason to believe that Applicant did not understand his right to present evidence or that the Judge impaired that right. See, e.g., ISCR Case No. 15-00092 at 2 (App. Bd. Apr. 8, 2016). Applicant challenges the Judge’s analysis of the mitigating conditions. We find no error in her treatment of the Guideline B concerns. Evidence that Applicant has close relatives, including his wife, who are citizens and residents of South Korea and that he has a significant property interest in a country that practices espionage against the U.S. support her decision. See, e.g., ISCR Case No. 14-06958 (App. Bd. Oct. 28, 2016). We reach a different conclusion, however, regarding the Guideline E concerns. Although the Judge stated that none of the mitigating conditions applied, she did not discuss them in any detail, particularly mitigating condition 17(c).1 Given that Applicant’s military discharge occurred in 2006, the Judge did not explain why she concluded that it was not attenuated by time or why, in any event, the underlying conduct continued to cast doubt upon Applicant’s eligibility for a clearance. A Judge should discuss significant evidence that a reasonable person would expect to be addressed. See, e.g., ISCR Case No. 11-13999 at 6 (App. Bd. Feb. 3, 2014). The Judge’s unfavorable findings under Guideline E are not sustainable. However, because the decision is independently sustainable under Guideline B, there is no reason to remand the case for additional analysis. Applicant submits two Hearing Office cases which, he believes, support his effort to obtain a clearance. We give these cases due consideration as persuasive authority. However, there is nothing in them that would compel a different overall result. In any event, Hearing Office cases are not binding on other Hearing Office Judges or on the Appeal Board. See, e.g., ISCR Case No. 15- 04096 at 3 (App. Bd. Nov. 22, 2016). The Judge examined the relevant evidence 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 Directive, Enclosure 2 ¶ 17(c): “[S]o much time has passed . . . that [the offense] is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment.”