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ISCR 16-01077.a1: Guideline K security clearance appeal, denied (2018) · CASE

ISCR Case 16-01077.a1denied

Case headnote

ISCR Case No. 16-01077.a1

Apr 25, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A long-time defense industry employee was denied a security clearance under Guideline K (Handling Protected Information) due to multiple security infractions involving the unauthorized handling of protected information. The appeal board upheld this denial, citing specific disqualifying conditions K.1 and K.2.

The denial was primarily based on the applicant's questionable credibility, stemming from inconsistent statements made about his security infractions. Furthermore, the applicant failed to demonstrate sufficient accountability for his actions, which encompassed multiple security violations.

Ultimately, the applicant's claims of reform and compliance were deemed insufficient to mitigate the serious nature of the infractions, leading to the final decision to deny the security clearance.

Conditions referenced

Disqualifying

K.1raisedHandling Protected Information
K.2raisedFailure to Comply with Security Requirements

Key rule quoted

“Once it is established that an applicant has committed security violations or infractions, he or she has a 'very heavy burden' of persuasion as to mitigation.”
ISCR Case No. 15-04340 at 3 (App. Bd. Jan. 30, 2017)

Procedural posture

SOR issuedMar 27, 2017
Answer filed—
Hearing heldJan 17, 2018
Decision dateApr 25, 2018

Cite for

Credibility Determinations in Security Clearance Cases
Heavy Burden of Persuasion for Mitigation After Security Violations
Deference to Judges' Findings in Security Clearance Appeals

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 who was denied a security clearance based on security concerns under Guideline K. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error and supporting the credibility determinations made by the Judge.

Appealed bythe applicant

Applicant representationAttorney

Judge belowElizabeth M. Matchinski denied the clearance

Decided ona hearing

Guidelines belowGuideline K

What the Board reviewed

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

Why the Board ruled this way

The Board found no harmful error in the Judge's decision, affirming the credibility determinations and the analysis of the security violations. The Judge's conclusions were supported by substantial evidence and were not arbitrary or capricious.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionDeference 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 K DIGEST: We give deference to Judge’s credibility determinations unless the record contains evidence that would undermine the determination. The Judge’s reservations about Applicant’s claims not to recall at least two of the allegations is consistent with the record that was before her. We find no reason to undermine the Judge’s credibility determination. Adverse decision affirmed. CASENO: 16-01077.a1 DATE: 04/25/2018 DATE: April 25, 2018 In Re: -------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-01077

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 March 27, 2017, 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 hearing. On January 17, 2018, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Elizabeth M. Matchinski 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 Applicant has worked in the Defense industry since 1983 and has worked for his current employer since early 2017. He has held a clearance since 1987. His SOR contains three allegations of security infractions. In late 2014, he violated his previous employer’s Special Security Agreement (SSA) by failing to submit a timely request for persons to visit his employer’s facilities and by failing to prepare a timely after-action contact report. In mid-2015, he emailed proprietary information without prior authorization and failed to comply with approval and reporting requirements for foreign travel. A month later, Applicant was issued a letter of warning and advised that additional infractions could result in more serious consequences. In late 2014, he took his cell phone into a secured area, used the phone despite having been told that he could not possess it there, and attempted to reenter the secured area with the phone. The Defense Security Service (DSS) placed Applicant’s employer on probation for six months due to security shortcomings. Although Applicant’s home unit was not placed on probation, DSS gave it a “major point hit” due to Applicant’s mid-2015 infractions. Decision at 8. Applicant’s 2014 and 2015 efficiency reports did not reflect his security infractions. Applicant enjoys an excellent reputation for the quality of his work performance. He received security training in 2017 and sought advice from his previous facility security officer (FSO) regarding the proper handling of controlled unclassified information. He signed a statement of intent not to commit future security infractions, with automatic revocation of his clearance should he re-offend. The Judge’s Analysis The Judge commended Applicant for having contacted his previous FSO for guidance and for his current compliance with security rules and requirements. She stated, however, that he did not show an appropriate level of accountability for his security-significant conduct. She found Applicant’s claim that he did not recall his failure to have submitted a timely visitor request to be lacking credibility. She also noted that Applicant initially testified that the email did not contain protected information but upon further questioning admitted that it did. She cited to evidence of Applicant’s good work performance, but she concluded that Applicant’s having held a clearance for many years should have placed him on notice of the requirements for handling protected information.

DISCUSSION

Applicant cites to record evidence that he contends the Judge failed to consider. This includes the nearly three years that have elapsed since the most recent security infraction, his letter of intent, and his having sought advice from the previous FSO. He also states that his misconduct was not intentional. On this last point, the Judge did not characterize Applicant’s misconduct as intentional, although we note Applicant’s possession and use of a cell phone in a secured area soon after having been told that such conduct was not allowed. This is a significant infraction, even if one accepts Applicant’s explanation that it was due merely to absent-mindedness. Applicant’s arguments are not enough rebut the presumption that the Judge considered the entirety of the record evidence, nor are they sufficient to demonstrate that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 17-00257 at 3 (App. Bd. Dec. 7, 2017). Applicant challenges the Judge’s conclusions about his credibility. We give deference to Judge’s credibility determinations unless the record contains evidence that would undermine the determination. See, e. g., ISCR Case No. 15-05565 at 4-5 (App. Bd. Aug. 2, 2017). In this case, the Judge’s reservations about Applicant’s claims not to recall at least two of the allegations is consistent with the record that was before her. We find no reason to undermine the Judge’s credibility determination. Applicant cites to a Hearing Office case that he believes supports his effort for a favorable decision on appeal. We give due consideration to this case. However, each case must be decided upon its own merits. Directive, Enclosure 2 ¶ 2(b). Moreover, Hearing Office decisions are binding neither on other Hearing Office Judges nor on the Board. See, e.g., ISCR Case No. 16-03219 at 2 (App. Bd. Nov. 15, 2017). The case that Applicant has cited does not provide a reason for disturbing the Judge’s adverse decision. It has significant factual differences from Applicant’s own. The record supports a conclusion that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The Judge’s adverse decision is sustainable on this record. Once it is established that an applicant has committed security violations or infractions, he or she has a “very heavy burden” of persuasion as to mitigation. Such violations or infractions “strike at the heart of the industrial security program.” Accordingly, a Judge must give any claims of reform or rehabilitation “strict scrutiny.” See, e.g., ISCR Case No. 15-04340 at 3 (App. Bd. Jan. 30, 2017). “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 national security eligibility will be resolved in favor of the national security.”

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