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ISCR Case 17-01870.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date10/2/2018
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 17-01870.h1) →
Participants
Applicant Representation: Pro Se
Judge: Michael Y. Ra'anan, James E. Moody, James F. Duffy
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline KHandling Protected Information · Against Applicant
- Guideline MUse of Information Technology · Against Applicant

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Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
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ISCR Case 17-01870.a1denied

Case Headnote

ISCR Case No. 17-01870.a1

Oct 2, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A 43-year-old applicant, who had held intermittent security clearance since 2004, was denied a security clearance following an appeal. The denial was based on concerns under Guideline E (Personal Conduct), Guideline K (Handling Protected Information), and Guideline M (Use of Information Technology).

Specifically, the applicant's past conduct included illegal downloading and mishandling classified information. The appeal board affirmed the denial, concluding that these actions demonstrated a pattern of dishonesty and rule violations, which were significant security concerns. Disqualifying condition 16(c) was raised.

While some allegations were mitigated due to the passage of time, applying mitigating condition 20(a), the judge ultimately found that the applicant's pattern of dishonesty and rule violations warranted the denial of his security clearance.

Conditions Referenced

Disqualifying

16(c)raisedCredible Adverse Information in Several Adjudicative Issue AreasThe judge concluded that the conduct alleged under Guidelines M and K, when viewed together, established a pattern of misconduct under Guideline E.

Mitigating

20(a)appliedThe Passage of Time Since the ConductThe judge found in favor of the applicant on the Guideline M and K allegations due to the time elapsed since the conduct.

Key Rule Quoted

“An applicant’s security related conduct can be alleged under more than one guideline and, in an appropriate case, be given independent weight by an administrative judge under different guidelines.”
— ISCR Case No. 04-09251 at 3 (App. Bd. Mar. 27, 2007)

Procedural Posture

SOR issuedJun 21, 2017
Answer filed—
Hearing heldJun 15, 2018
Decision dateOct 2, 2018

Cite For

Pattern of Dishonesty Under Guideline E
Independent Weight of Conduct Under Multiple Guidelines
Impact of Time Elapsed on Mitigating Conditions

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 after being denied due to security concerns under multiple guidelines. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the denial, finding the Judge's conclusions were supported by substantial evidence and not contrary to law.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRichard A. Cefola — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline KGuideline M

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 no harmful error in the Administrative Judge's decision, affirming that the Judge's findings were supported by substantial evidence and that the decision was not arbitrary or capricious.

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; Guideline K; Guideline M DIGEST: An applicant’s security related conduct can be alleged under more than one guideline and, in an appropriate case, be given independent weight by an administrative judge under different guidelines. Adverse decision affirmed. CASENO: 17-01870.a1 DATE: 10/02/2018 DATE: October 2, 2018 In Re: ---------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 17-01870

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 June 21, 2017, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline M (Use of Information Technology), 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 hearing. On June 15, 2018, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Richard A. Cefola 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 and Analysis Applicant, who is 43 years old, has been working for his current employer since 2015 and has intermittently held a security clearance since about 2004. From about 2011 to 2014, he illegally downloaded songs and movies to his personal computer. He admits that conduct and describes it as “foolish.” Decision at 2. In 2008, he violated security guidelines by knowingly taking home classified documents. A year later, he admitted the improper handling of classified information when confronted with a polygraph examination. Applicant’s illegal downloading of material occurred more than three years ago. His improper handling of classified information occurred over nine years ago. Due to the passage of time, the Guideline M and K allegations were found in favor of Applicant. Under Guideline E, however, his security violation coupled with the illegal downloading of material constitutes a pattern of dishonesty and rule violations that is not mitigated.

DISCUSSION

In the SOR, the Guideline M and K allegations were cross-alleged as the sole Guideline E allegation. On appeal, Applicant contends that the Judge reached contradictory conclusions by finding for him on the Guideline M and K allegations and against him under Guideline E. This argument lacks merit. An applicant’s security related conduct can be alleged under more than one guideline and, in an appropriate case, be given independent weight by an administrative judge under different guidelines. See, e.g., ISCR Case No. 04-09251 at 3 (App. Bd. Mar. 27, 2007). In this case, there was a rational basis for the Judge to conclude that the conduct alleged under Guidelines M and K, when viewed together, established a pattern of misconduct under Guideline E. We note Disqualifying Condition 16(c) encapsulates this concept by stating security concerns can arise when credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole-person assessment of questionable judgement, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the individual may not properly safeguard classified or sensitive information.1 Applicant asserts that it is not effectively possible to rebut the presumption that a Judge considered all the evidence. He also insinuates that applicants cannot win before the Appeal Board. Recently, we issued several decisions where applicants have effectively rebutted the presumption and won either remands or reversals at the Board. See, e.g., ISCR Case No. 15-06990 (App. Bd. Jan. 11, 2018); ISCR Case No. 15-05565 (App. Bd Aug. 2, 2017); ISCR Case No. 12-10335 (App. Bd. Jul. 21, 2017); ISCR Case No. 15-07242 (App. Bd. Feb. 9, 2017); ISCR Case No. 14-06592 (App. Bd. Apr. 20, 2016); and ISCR Case No. 14-05150 (App. Bd. Apr. 20, 2016).

Applicant’s remaining arguments amount to a disagreement with the Judge’s weighing of the evidence. He argues, for example, that he regrets the alleged misconduct, has ceased engaging in that behavior, and more than three years have passed without recurrence. He also contends the alleged misconduct was unrelated, not sequenced, and does not constitute a pattern of rule violations. However, a party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15-08684 at 2 (App. Bd. Nov. 22, 2017). 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.” 1 Directive, Encl. 2, App. A ¶ 16(c).

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