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ISCR 15-04340.a1: Guideline K security clearance appeal, denied (2017) · CASE

ISCR Case 15-04340.a1denied

Case headnote

ISCR Case No. 15-04340.a1

Jan 30, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, a long-time employee holding a security clearance since the mid-1990s, was denied continued access under Guideline K (Handling Protected Information). The denial stemmed from six security infractions committed over a period exceeding two years. These actions raised concerns under Disqualifying Conditions AG K1, AG K2, and AG K3.

The applicant asserted that medical issues contributed to his behavior; however, he failed to provide corroborating evidence to support these claims. Consequently, the judge determined that the applicant did not meet the substantial burden of persuasion required to demonstrate mitigation for his misconduct.

Ultimately, the security clearance was denied due to a lack of trustworthiness and reliability, as the applicant's repeated infractions and uncorroborated medical claims did not sufficiently mitigate the security concerns.

Conditions referenced

Disqualifying

AG K1raisedUnauthorized Disclosure of Classified Information
AG K2raisedFailure to Comply with Rules and Regulations
AG K3raisedDeliberate or Negligent Failure to Safeguard Classified Information

Key rule quoted

“Once it is established that an applicant has committed security violations, he or she has a 'very heavy burden' of persuasion as to mitigation.”
ISCR Case No. 11-09219 at 3 (App. Bd. Mar. 31, 2014)

Procedural posture

SOR issuedDec 2, 2015
Answer filed—
Hearing heldNov 8, 2016
Decision dateJan 30, 2017

Cite for

Security Violations Under Guideline K
Heavy Burden of Persuasion for Mitigation
Lack of Corroboration for Medical Claims Affecting Security Conduct

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 six security infractions committed by the Applicant over a two-year period. The Applicant argued that the Judge's findings contained errors and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error that would warrant overturning the denial.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDarlene D. Lokey Anderson denied the clearance

Decided onthe written record

Guidelines belowGuideline K

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant argued that the Judge's findings regarding his lack of candor were unsupported by the record.
Erroneous finding of fact, raised by the applicantRejected
Applicant contended that the Judge incorrectly stated the year he received his security clearance.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant claimed 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 Board found that the Judge's conclusion was supported by substantial evidence, and the errors identified by the Applicant were deemed harmless as they did not affect the outcome of the decision.

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
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 K DIGEST: Considering the Judge’s unchallenged findings that Applicant committed six security infractions over a more than two-year period and that Applicant did not corroborate his claim to have a medical basis for his misconduct, we find no reason to disturb the Judge’s conclusion that Applicant had not met his heavy burden of persuasion. Adverse decision affirmed. CASE NO: 15-04340.a1 DATE: 01/30/2017 DATE: January 30, 2017 In Re: ------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-04340

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On December 2, 2015, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline K (Handling Protected Information) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On November 8, 2016, after considering the record, 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 issues on appeal: whether the Judge’s findings of fact contained errors, 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 employed since 1995 and has held a clearance since 2007. Between early 2012 and mid 2015 Applicant committed six separate security infractions by failing properly to secure closed areas within his place of employment. After each occasion appropriate authorities counseled him, with written reprimands, retraining, checklists, etc. Applicant attributed his infractions to inattention due to grief over his parents’ illnesses and deaths. He met with a psychologist, who in turn referred him to a neurologist. His physician also suggested that Applicant suffered from attention deficit disorder and a sleep problem. The record contains no evidence of a conclusive diagnosis. Applicant’s character references confirm that he had experienced difficulties resulting from his parents’ final illnesses and that he has demonstrated positive change since their deaths. According to his references, Applicant has shown improvement in compliance with security policy and that he can be trusted with classified information. The Judge’s Analysis The Judge noted that Applicant had committed security violations on six separate occasions, concluding that he had not presented an acceptable excuse for his misconduct. She stated that the number of his infractions raise doubt about his trustworthiness, reliability, and judgment, constituting a pattern that may likely recur. She concluded that none of the Guideline K mitigating conditions were entitled to favorable application.

DISCUSSION

Applicant challenges some of the Judge’s findings of fact and has identified some errors. For example, he correctly notes that he has held a clearance since the mid-1990srather than 2007 as the Judge found. Item 4, Security Clearance Application, at 22. He also identifies a typographical error in her summarization of one of the character references, the word “cant” which contextually clearly should read “can.” Applicant identifies another error, this time in the whole-person analysis. The Judge stated that Applicant’s security infractions “support a whole-person assessment of poor judgement, untrustworthiness, unreliability, a lack of candor, and unwillingness to comply with rules and regulations[.]” Decision at 6-7. (Emphasis added) As Applicant contends, there is no evidence in the record to show a lack of candor. Indeed, the record includes copies of written reprimands that Applicant received from his employer. Though noting the seriousness of his infractions, several of them explicitly commend Applicant for his candor in admitting his misconduct and for his acceptance of responsibility. The Judge cited to nothing in the record to support a conclusion that Applicant was untruthful or that he had been less than candid. Although we give deference to a Judge’s credibility determinations (Directive ¶ E3.1.32.1), in the case before us we conclude that this statement by the Judge is unsupported by the record and is not sustainable. Applicant cites to evidence that he has not had a recurrence of his misconduct since mid- 2015. He also argues that his claims about a medical basis for his misconduct are well founded and not merely speculative, as the Judge stated. He contends that the Judge should have evaluated his conduct in light of his having held a clearance since the mid-1990srather than 2007, thereby underscoring what he views as the unusual nature of his infractions. Applicant’s arguments amount simply to a disagreement with the Judge’s weighing of the evidence, which is not enough to show error. Once it is established that an applicant has committed security violations, he or she has a “very heavy burden” of persuasion as to mitigation. Such violations “strike at the heart of the industrial security program.” Accordingly, a Judge must give any claims of reform or rehabilitation “strict scrutiny.” ISCR Case No. 11-09219 at 3 (App. Bd. Mar. 31, 2014). Considering the Judge’s unchallenged findings that Applicant committed six security infractions over a more than two-year period and that Applicant did not corroborate his claim to have a medical basis for his misconduct, we find no reason to disturb the Judge’s conclusion that Applicant had not met his heavy burden of persuasion. Given the seriousness of Applicant’s security-significant conduct, we conclude that the Judge would have made the same ultimate decision even if she had not made the errors outlined above. Therefore, there is no reason to remand the case for the Judge to correct them. 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: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board