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ISCR 05-01305.a1: Guideline K security clearance appeal, denied (2007) · CASE

ISCR Case 05-01305.a1denied

Case headnote

ISCR Case No. 05-01305.a1

Oct 17, 2007· Hon. Jean E. Smallin· appeal

Summary

A senior systems administrator for a defense contractor was denied a security clearance under Guideline K (Handling Protected Information) due to multiple security violations spanning a nine-year period. The applicant's infractions included failing to secure classified materials and a hard drive.

These security violations occurred throughout the applicant's employment, with the first incident reported just two months into his tenure. The judge considered the disqualifying conditions raised under AG ¶ 1 and the mitigating conditions applied under AG ¶ 2, AG ¶ 3, AG ¶ 4, and AG ¶ 5.

Ultimately, the judge determined that the applicant did not meet the burden of persuasion for the mitigating conditions, leading to the denial of the security clearance.

Conditions referenced

Disqualifying

AG ¶ 1raisedSecurity Violations

Mitigating

AG ¶ 2rejectedInadvertent Security ViolationsThe judge found that the applicant's security violations were not isolated or infrequent.
AG ¶ 3rejectedPositive Attitude Toward Security ResponsibilitiesThe applicant's history of violations outweighed any positive attitude.
AG ¶ 4rejectedIsolated or Infrequent IncidentsThe applicant committed eight violations over nine years, which were not considered infrequent.
AG ¶ 5rejectedImproper or Inadequate TrainingThe applicant had received security training and was re-indoctrinated in security procedures.

Key rule quoted

“The applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable security clearance.”
Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural posture

SOR issuedAug 26, 2005
Answer filed—
Hearing heldMay 7, 2007
Decision dateOct 17, 2007

Cite for

Security Violations as a Basis for Denial Under Guideline K
Burden of Persuasion on the Applicant for Mitigating Conditions
Seriousness of Security Violations in Determining Suitability for Clearance

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 numerous security violations committed by the Applicant over a nine-year period. The Department Counsel appealed the decision, arguing that the Judge erred in applying mitigating conditions and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe Government (Department Counsel)

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 Government (Department Counsel)Rejected
The Judge's adverse security clearance decision is arbitrary, capricious, and contrary to law.
Mitigation wrongly applied / not applied, raised by the Government (Department Counsel)Rejected
The Judge erred in concluding that Applicant had not met his burden of persuasion as to the application of relevant mitigating conditions.

Why the Board ruled this way

The Board found no error in the Judge's conclusion that the Applicant's numerous security violations over a nine-year span warranted the denial of a security clearance. The Judge's decision was supported by substantial evidence and was not arbitrary or capricious.

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

Jean E. Smallin
William S. Fields
James E. Moody

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

FOR OFFICIAL USE ONLY When unredacted this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies KEYWORD: Guideline K DIGEST: Applicant committed numerous security violations over a nine year span. Adverse decision affirmed. CASENO: 05-01305.a1 DATE: 10/17/2007 DATE: October 17, 2007 In Re: ------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 05-01305

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT John Bayard Glendon, Esq., Department Counsel FOR APPLICANT Nicolas A. Gordon, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 26, 2005, DOHA issued a statement of reasons advising Applicant of the basis for that decision–security concerns raised under Guideline K (Security Violations) of Department An allegation reflecting this incident was added to the SOR through a Motion to Amend, dated January 29 2007. The Judge granted the motion on the following day. Decision at 2. See testimony of the Defense Security Service specialist: “As a result of them not being able to find it, we concluded that the item was in fact lost and that’s what we are reporting. . . our position was . . . unless you can produce the hard drive and verify that there is in fact nothing on it, the fact that it was associated with a classified system means that there is the potential that classified material was in fact on it . . .” Tr. at 70-71. Directive ¶ E2.A11.1.3.1. Directive ¶ E2.A11.1.3.4. Directive ¶¶ E2.A11.1.3.2, E2.A11.1.3.3. of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On May 7, 2007, after the hearing, Administrative Judge Elizabeth M. Matchinski denied Applicant’s request for a security clearance. Department Counsel filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issues on appeal: whether the Judge erred in concluding that Applicant had not met his burden of persuasion as to the application of relevant mitigating conditions and whether the Judge’s adverse security clearance decision is arbitrary, capricious, and contrary to law. Finding no error, we affirm. The Judge found that Applicant, a senior systems administrator for a defense contractor, committed numerous security violations from 1997 through 2006. These include five instances of failing to secure DoD-approved security containers designed for the storage of classified material; two instances of failure to secure a classified computer hard disk drive, and one instance of failing to secure a box containing material marked TOP SECRET. This last incident occurred nearly a year after the date of the SOR in Applicant’s case. Additionally, one of the improperly secured hard disk drives was never recovered.2 In analyzing the case, the Judge noted that two mitigating conditions were possibly applicable–that Applicant’s infractions were inadvertent and that he showed a positive attitude toward his security responsibilities. However, the Judge also took into consideration the fact that Applicant’s security violations span almost the whole of his employment with the federal contractor, the first incident occurring only two months into his tenure. She also noted that the latest violation occurred after nine years of job experience and that various corrective steps taken by Applicant’s employer had been unsuccessful. Balancing the mitigating factors with the security concerns, the Judge concluded that Applicant had not met his burden of persuasion that it is clearly consistent with the interests of national security for him to have a clearance. See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988); Directive ¶ E3.1.15. (“The applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable security clearance.”) Applicant argues on appeal that the Judge erred in not applying two other mitigating conditions–that the security incidents were isolated or infrequent and that they resulted from improper or inadequate training. The Board does not find this argument persuasive. Given the Applicant testified that upon starting his employment he was briefed on security procedures. Tr. at 136. Government Exhibit 3 consists of security training material prepared by Applicant’s employer, which covers potential infractions such as those committed by Applicant. Additionally, various Government exhibits address the specific security violations in Applicant’s case and advise that remedial action included his being “re-indoctrinated” in security procedures. See, e.g., Government Exhibit 21 at 2. inherent seriousness of security violations, committing eight over a nine year period is a reasonable basis for concluding that they are not infrequent. See ISCR Case No. 03-26888 at 2 (App. Bd. Oct. 5, 2006) (“Security violations are one of the strongest possible reasons for denying or revoking access to classified information, as they raise very serious questions about an applicant’s suitability for access to classified information.”) (internal citations omitted); ISCR Case No. 01-24358 at 4 (App. Bd. Apr. 13, 2004) (Judge concluded that Applicant’s failure to safeguard six classified documents over a ten year period was isolated or infrequent. Board reversed the Judge, holding the Judge’s conclusion to be arbitrary and capricious.) Furthermore, the Board finds no basis to disturb the Judge’s conclusion that Applicant’s security violations were not caused by improper or inadequate training. Examining the Judge’s decision in light of her findings and the record as a whole, the Board concludes that she articulates “a satisfactory explanation for” the decision, “including a ‘rational connection between the facts found and the choices 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)). We hold that her adverse security clearance decision is neither arbitrary, capricious, nor contrary to law.

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board