CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 05-13515.a1 — CASE

Case record

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

Decision Date7/19/2007
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 05-13515.h1) →
Participants
Applicant Representation: Pro Se
Judge: Jean E. Smallin, Michael D. Hipple, William S. Fields
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline HDrug Involvement & Substance Misuse · For Applicant
- Guideline JCriminal Conduct · For Applicant
- Guideline MUse of Information Technology · Withdrawn

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 05-13515.a1denied

Case Headnote

ISCR Case No. 05-13515.a1

Jul 19, 2007· Hon. Jean E. Smallin· appeal

Summary

An applicant, representing himself, was denied a security clearance due to unmitigated security concerns under Guideline E (Personal Conduct). While favorable findings were made under Guideline H (Drug Involvement) and Guideline J (Criminal Conduct), the applicant failed to mitigate disqualifying conditions related to personal conduct.

Specifically, the judge found the applicant's arguments regarding the mitigation of disqualifying conduct unpersuasive. The applicant did not demonstrate that favorable evidence outweighed the unfavorable evidence, leading to the denial.

The appeal board affirmed the denial, emphasizing the applicant's failure to sufficiently mitigate the disqualifying conduct, particularly concerning falsification and unauthorized access to services. The denial was based solely on Guideline E, with no unmitigated concerns found under Guidelines H, J, or M.

Conditions Referenced

Disqualifying

E2raisedPersonal Conduct

Key Rule Quoted

“Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.”
— Directive ¶ E3.1.15.

Procedural Posture

SOR issuedMar 29, 2006
Answer filed—
Hearing heldJan 25, 2007
Decision dateJul 19, 2007

Cite For

Burden of Proof on Applicant to Establish Mitigation After Government Raises Security Concerns
Weighing of Evidence in Security Clearance Decisions
Insufficient Mitigation of Disqualifying Conduct Under Guideline E

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 was from a denial of a security clearance based on security concerns under multiple guidelines. The applicant argued that the Judge erred in not finding mitigation for the concerns raised under Guideline E. The Board affirmed the Judge's decision, finding the applicant's arguments unpersuasive and the Judge's conclusions reasonable based on the evidence presented.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowKathryn Moen Braeman — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline EGuideline HGuideline JGuideline M

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contends that the Judge erred in concluding that the security concerns raised under Guideline E had not been mitigated.

Why the Board ruled this way

The Board found that the Judge reasonably explained why the evidence presented in mitigation was insufficient to overcome the government's security concerns, and the decision was not arbitrary, capricious, or contrary to law.

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 D. Hipple
Jean E. Smallin
William S. Fields

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 H; Guideline J; Guideline M DIGEST: Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Adverse decision affirmed. CASENO: 05-13515.a1 DATE: 07/19/2007 DATE: July 19, 2007 In Re: -------- SSN: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 05-13515

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On March 29, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline E (Personal Conduct), Guideline H (Drug Involvement), Guideline J (Criminal Conduct) and Guideline M (Misuse of Information Technology Systems) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On January 25, 2007, after the hearing, The Judge found in favor of Applicant under Guidelines H and J. The Guideline M allegations and SOR ¶ 1.d were withdrawn. Those favorable dispositions are not at issue on appeal. The satellite television programs were accessed between 2002 and 2003, and were valued at approximately $14,000. The 200 computer programs were downloaded between 1999 and 2003, and were valued at approximately $10,000. Administrative Judge Kathryn Moen Braeman denied Applicant’s request for a security clearance.1 Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge erred by concluding that the security concerns raised under Guideline E had not been mitigated. Applicant contends that the Judge erred in concluding that the security concerns raised under Guideline E had not been mitigated. With respect to the falsification of his security clearance application, Applicant argues that the Judge should have found the disqualifying conduct mitigated, as a matter of law, under the relevant Mitigating Conditions, because the conduct was an isolated incident; not likely to recur; and he had subsequently provided the correct information voluntarily. With respect to his multiple instances of accessing premium, pay-per-view, pornographic and other satellite television programs (for himself and others) without paying the required fees, and his downloading of multiple computer programs without paying the required costs, Applicant argues the Judge should have found the disqualifying conduct mitigated, as a matter of law, under the whole person factors, based upon the totality of the evidence. The Board does not find these arguments persuasive. “[T]here is a strong presumption against granting a security clearance.” Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied 499 U.S. 905 (1991). Once the government th presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The application of disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. See, e.g., ISCR Case No. 01-14740 at 7 (App. Bd. Jan.15, 2003). Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. An applicant’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. In this case, the Judge weighed the mitigating evidence offered by Applicant against the recency and seriousness of the disqualifying conduct, and considered the possible application of relevant mitigating conditions and whole person factors. The Judge found in favor of Applicant with respect to some of the SOR allegations. However, the Judge reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome all of the government’s security concerns. The Board does not review a case de novo. The favorable record evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 02-28041 at 4 (App. Bd. June 29, 2005). Given the record that was before her, the Judge’s ultimate unfavorable clearance decision under Guideline E is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael D. Hipple Michael D.Hipple Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board