CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 17-01817.a1 — CASE

Case record

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

Decision Date5/20/2020
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 17-01817) →
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 JCriminal Conduct · Against Applicant
- Guideline MUse of Information Technology · Against Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
Finding similar decisions…

ISCR Case 17-01817.a1denied

Case Headnote

ISCR Case No. 17-01817.a1

May 20, 2020· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance was denied for an applicant in her 40s, whose prior clearance had been revoked in 2013. The denial was based on concerns under Guideline E (Personal Conduct), Guideline J (Criminal Conduct), and Guideline M (Use of Information Technology). The applicant faced allegations of theft and unauthorized use of computer equipment from two employers.

While the applicant admitted to some misconduct, she denied the theft allegations, attributing her actions to a permissive workplace culture. However, the Appeal Board found her claims of a permissive culture not credible and insufficient to mitigate her actions.

The Board upheld the denial, emphasizing that the applicant's extensive background in Information Technology was an aggravating factor in her misconduct. The judge's initial credibility determinations were found to be reasonable and supported by substantial evidence, leading to the final decision to deny the security clearance.

Conditions Referenced

Disqualifying

JraisedCriminal Conduct
EraisedPersonal Conduct
MraisedUse of Information Technology

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 issuedNov 14, 2017
Answer filed—
Hearing heldFeb 26, 2020
Decision dateMay 20, 2020

Cite For

Deference to a Judge’s Credibility Determination
Importance of National Security in Clearance Eligibility
Rebuttable Presumption of Evidence Considered by the Judge

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 due to trustworthiness concerns under multiple guidelines. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful errors and that the decision was supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRobert E. Coacher — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline JGuideline M

What the Board reviewed

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

Why the Board ruled this way

The Board found that the Judge's findings and conclusions were based on substantial evidence and reasonable inferences drawn from the evidence. The Judge's credibility determinations were given deference, and the decision was affirmed as sustainable on the record.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo 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 E; Guideline J; Guideline M DIGEST: As provided in Directive ¶ E3.1.32.1, the Appeal Board gives deference to a Judge’s credibility determination. From our review of the record, the Judge’s material findings and conclusions regarding the theft of the computer equipment are based on substantial evidence or constitute reasonable inferences that could be drawn from the evidence. Adverse decision is affirmed. CASE NO: 17-01817.a1 DATE: 05/20/2020

DATE: May 20, 2020 ) In Re: ) ) -------------------- ) ISCR Case No. 17-01817 ) ) Applicant for Security Clearance ) )

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 trustworthiness designation. On November 14, 2017, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—trustworthiness concerns raised under Guideline E (Personal Conduct), Guideline J (Criminal Conduct), and Guideline M (Use of Information Technology) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. Although the SOR was styled originally as an ADP case, the Judge determined this was an ISCR case because Applicant was being sponsored for a security clearance.1 On February 26, 2020, after the hearing, Administrative Judge Robert E. Coacher 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 and Analysis Applicant, who is in her 40s, previously held a security clearance that was revoked by another Federal agency in 2013. The SOR alleged that Applicant committed employee theft in about 1989; that she stole computer equipment from two different employers from 2000 to 2007; and that she illegally downloaded movies from 1993 to 2008, music from 2008 to 2011, and computer software. She denied the allegations that she stole computer equipment from the two employers and admitted the other allegations. During a 2012 security investigation, which involved an interview and polygraph examination, Applicant admitted engaging in the alleged conduct. While the passage of time partially mitigated Applicant’s earliest misconduct, “what is most troubling about Applicant’s behavior is that she possesses an extensive IT [information technology] background, yet her inappropriate conduct fell directly into her area of expertise, i.e., theft of, or unauthorized use of computer hardware and software. Applicant failed to provide sufficient evidence to mitigate the personal conduct, criminal conduct, and use of information technology security concerns.” Decision at 8.

DISCUSSION

In her appeal brief, Applicant essentially contends she did not steal computer equipment from the two employers. She claims that, when she arrived a her position, “employees were already permitted to take excess equipment that was not being used and music downloads were being done as well. . . . Excessed or DMRO [Defense Material Reutilization Office] equipment was permitted to be taken by the staff as well to the point that asking permission was not even required from management . . . .” Appeal Brief at 1-2. In the decision, the Judge addressed this claim by stating: 1 At the beginning of the hearing, Applicant acknowledged that she was hoping to have her security clearance reinstated. Tr. at 9. Also during the March 2012 interview, Applicant admitted that while working for two different employers (one was a successor contractor to the other) from 2000 to 2007 she took, without permission or authorization, numerous computer items, including multiple computer towers, monitors, keyboards, mouse sets, speakers, and memory sticks. She also took at least three laptop computers. She used these herself at home and gave several away to family members, her friends, and even her church. The value of the items was in excess of several thousands of dollars. She explained to the interviewer that she took the items because she could not afford to buy similar items at the time and the company was overstocked with these surplus items. She was told by a government employee that the items were to be strictly accounted for, but he also insinuated that he did not care if she took things. She knew what she was doing was wrong and she stopped. In her SOR answer and during her testimony, Applicant backed away from total acceptance of responsibility for her actions and claimed she had verbal authority from a supervisor to take the items. She also claimed that there was a culture of permissiveness when it comes to computer accountability at these companies during her time. Her SOR responses on this issue and her testimony were not credible. [Decision at 3.]

As provided in Directive ¶ E3.1.32.1, the Appeal Board gives deference to a Judge’s credibility determination. From our review of the record, the Judge’s material findings and conclusions regarding the theft of the computer equipment are based on substantial evidence or constitute reasonable inferences that could be drawn from the evidence. See, e.g., ISCR Case No. 17-02225 at 2-3 (App. Bd. Jun. 25, 2019). Applicant also contends that she is a different person than the one depicted in the exhibits, that she has participated in community service, and that she demonstrated her reliability in jobs for the last seven years. Her arguments are neither enough to rebut the presumption that the Judge considered all of the evidence in the record nor 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. 15- 04856 at 2-3 (App. Bd. Mar. 9, 2017). Applicant has failed to establish the Judge committed any harmful errors. 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: 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