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ISCR Case 15-08002.a1 — CASE

ISCR Case 15-08002.a1denied

Case Headnote

ISCR Case No. 15-08002.a1

Jul 17, 2018· Hon. Charles C. Hale· appeal

Summary

A 56-year-old defense contractor employee was denied a security clearance under Guideline E (Personal Conduct) and Guideline K (Handling Protected Information). The denial stemmed from multiple security incidents, including the applicant's failure to secure sensitive information and admitting an unapproved foreign national into a meeting.

These repeated violations occurred despite the applicant receiving counseling, which raised significant concerns about his reliability and ability to safeguard protected information. The appeal board upheld the denial, emphasizing that the applicant's pattern of conduct did not meet the burden to mitigate the security concerns.

Ultimately, the applicant's history of security infractions, coupled with his failure to demonstrate improved conduct after counseling, led to the denial of his security clearance.

Conditions Referenced

Disqualifying

AG KraisedHandling Protected Information
AG EraisedPersonal 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 issuedMay 16, 2016
Answer filed—
Hearing heldMar 26, 2018
Decision dateJul 17, 2018

Cite For

Security Clearance Denial Based on Repeated Security Violations
Impact of Industry Rules on Security Clearance Decisions
Deference to Employer's Findings in Security Investigations

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 seeking a security clearance who was denied due to security concerns under Guideline K and Guideline E. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the denial, finding the Judge's decision was supported by substantial evidence and not contrary to law.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEric H. Borgstrom — denied the clearance

Decided onthe written record

Guidelines belowGuideline EGuideline K

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and was not arbitrary, capricious, or contrary to law. The applicant's repeated security violations raised significant concerns regarding his reliability and ability to safeguard protected information.

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

James E. Moody
Charles C. Hale
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; Guideline K DIGEST: Guideline K is not limited to violations of DoD rules and polices, but also encompasses violations of industry rules and policies established for the protection of classified and sensitive information. Adverse decision affirmed. CASENO: 15-08002.a1 DATE: 07/17/2018 DATE: July 17, 2018 In Re: ---------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-08002

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 May 16, 2016, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline K (Handling Protected Information) and 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 March 26, 2018, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Eric H. Borgstrom 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 decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant is a 56-year-old employee of a defense contractor. He admitted that he has been involved in seven security incidents.1 These include him receiving written notice of security violations or infractions for failing to secure safes and other protections and for admitting an unapproved foreign national into a unclassified meeting. He disclosed these incidents on his security clearance application. No evidence of compromise of sensitive information arose from these incidents. Applicant attributed the incidents to being unable to concentrate on his security duties while performing supervisory duties. In 2014, he voluntarily resigned from that supervisory role. Applicant’s Facility Security Officer supports him, holds him in high regard, and notes that he has not had any security incidents since early 2016. The Judge’s Analysis Applicant’s security incidents were not deliberate but persisted despite repeated counseling. The first six security violations occurred over a three-year period. He committed another security violation after stepping down from his supervisory role. While he demonstrated candor in reporting the incidents, the repeated nature of the incidents following counseling casts doubt on his reliability and ability to safeguard protected information. He has not met his “very heavy burden” to mitigate the security concerns arising from his pattern of security violations. Decision at 5 and 6, citing ISCR Case No. 11-09219 at 3 (App. Bd. Mar. 31, 2014).

DISCUSSION

In his appeal brief, Applicant notes that the incident involving the admittance of a foreign national into an unclassified meeting was “a violation of [his company’s] policy.” Appeal Brief at 1. He argues that incident was not a violation of DoD policy or the “Industrial Security Program” and should not have been considered by the Judge. Id. However, Guideline K is not limited to 1 Only six of the incidents were alleged in the SOR under Guideline K. Those six incidents were also cross- alleged in a single Guideline E allegation. violations of DoD rules and polices, but also encompasses violations of industry rules and policies established for the protection of classified and sensitive information. See, e.g., ISCR Case No. 14- 00963 at 3 (App. Bd. Jan. 13, 2015) (affirming an unfavorable clearance decision in which an applicant’s mishandling of a company’s proprietary information was alleged under Guideline K).

Applicant also argues the SOR allegation involving the foreign national is misleading because it does not portray the incident as involving a meeting between representatives from his company and a vendor. We do not find this argument persuasive. The company submitted a Joint Personnel Adjudication System (JPAS) entry reporting that Applicant’s admittance of the foreign national into its facility raised Guideline K security concerns because such conduct violated its rules on foreign national visitors and access control. As we have previously noted, we give deference to a company’s findings and conclusions in its security investigations. See, e.g., ISCR Case No. 15- 08385 at 4 (App. Bd. May 23, 2018) (“[B]ecause of the unique position of employers as actual administrators of classified programs and the degree of knowledge possessed by them in any particular case, their determinations and characterizations regarding security violations are entitled to considerable deference, and should not be discounted or contradicted without a cogent explanation.”). Applicant has not established any convincing reason for concluding the Judge erred in his findings or conclusions regarding the allegation in question. The balance of Applicant’s arguments amount to a disagreement with the Judge’s weighing of the evidence. In those arguments, he cites to such matters as his honesty and integrity in disclosing his security incidents and the length of time that has passed since his last incident. These arguments, however, are not sufficient 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. 14-06440 at 4 (App. Bd. Jan. 8, 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, Encl. 2, App A. ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

ORDER

The Decision is AFFIRMED. Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board