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ISCR Case 14-06870.a1 — CASE

ISCR Case 14-06870.a1denied

Case Headnote

ISCR Case No. 14-06870.a1

Feb 15, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance was denied under Guideline E (Personal Conduct) for an applicant who was a former defense contractor employee. The denial stemmed from serious misconduct, specifically the presentation of fraudulent logs to the government.

Further contributing to the denial, the applicant was found to have lied about the circumstances of their job termination during the clearance investigation. The judge determined that these actions demonstrated a lack of trustworthiness and good judgment, citing Disqualifying Condition E2.

Ultimately, the judge found insufficient evidence to establish the applicant's current trustworthiness or good judgment, and the appeal board affirmed the adverse decision, emphasizing the critical role of trustworthiness in national security.

Conditions Referenced

Disqualifying

E2raisedE2.1The applicant's misconduct involved dishonesty and fraudulent behavior.

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 7, 2015
Answer filed—
Hearing heldNov 22, 2016
Decision dateFeb 15, 2017

Cite For

Serious Misconduct Involving Dishonesty Under Guideline E
Importance of Trustworthiness in National Security
Affirmation of Adverse Decisions Based on Lack of Good Judgment

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 was brought by the applicant after the Administrative Judge denied his request for a security clearance based on security concerns under Guideline E. The applicant argued that the Judge did not appropriately weigh favorable evidence. The Board affirmed the Judge's decision, finding no harmful error in the analysis.

Appealed bythe applicant

Applicant representationAttorney

Judge belowWilford H. Ross — denied the clearance

Decided onthe written record

Guidelines belowGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge did not extend appropriate weight to favorable evidence.

Why the Board ruled this way

The Board found that the Judge examined the relevant evidence and articulated a satisfactory explanation for the decision, affirming that the adverse decision was not arbitrary, capricious, or contrary to law.

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
James E. Moody
James F. Duffy

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: Applicant has not demonstrated that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. Adverse decision affirmed. CASE NO: 14-06870.a1 DATE: 02/15/2017 DATE: February 15, 2017 In Re: ------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-06870

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 7, 2015, DoD 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). Applicant requested a decision on the written record. On November 22, 2016, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Wilford H. Ross 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 In early 2012, Applicant was fired from a job with a Defense contractor because he had presented fraudulent logs to the Government and because he did not do a majority of the work conveyed in the logs, which the employer characterized as “gross misconduct.” Decision at 2. In his Answer to the SOR, Applicant admitted the misconduct but claimed that it was common among his co-workers to falsify the logs and then receive only a verbal warning. His state’s Department of Labor upheld Applicant’s firing. When interviewed by a clearance investigator, Applicant lied about his job termination, attributing it to a conflict between himself and a company official. He later confirmed under oath the accuracy of his interview summary that the investigator had prepared. The Judge’s Analysis The Judge concluded that none of the mitigating conditions applied to Applicant’s case. He characterized Applicant’s on-the-job misconduct as extremely serious, stating that it could have affected national security. He also stated that Applicant had lied about his misconduct at least twice. He concluded that there is insufficient evidence that Applicant currently shows good judgment or is trustworthy.

DISCUSSION

Applicant contends that the Judge did not extend appropriate weight to favorable evidence, for example his claim in the SOR Answer that others had committed similar infractions.1 He also argues that the Judge should have extended more weight to Applicant’s three years without subsequent offense. Applicant has not demonstrated 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 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.”

FOOTNOTES

1 Applicant did not submit a documentary response to the File of Relevant Material. Decision at 1. Order The Decision is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board