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ISCR Case 06-22400.a1 — CASE

ISCR Case 06-22400.a1denied

Case Headnote

ISCR Case No. 06-22400.a1

Dec 4, 2007· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline E (Personal Conduct) due to substantiated allegations of academic misconduct. The judge found substantial evidence that the applicant engaged in plagiarism and other forms of misconduct at two separate universities.

The applicant's arguments for mitigation were presented but ultimately deemed insufficient to address the government's security concerns. Consequently, the denial of the security clearance was affirmed by the Appeal Board.

The decision to deny the clearance was based on the applicant's failure to mitigate the disqualifying conditions raised under Guideline E, specifically concerning his personal conduct as demonstrated by the academic misconduct at both institutions.

Conditions Referenced

Disqualifying

AG E2raisedPersonal Conduct

Key Rule Quoted

“The application of Adjudicative Guidelines disqualifying and mitigating conditions does not turn simply on a finding that one or more of them applies to the particular facts of a case.”
— ISCR Case No. 01-14740 at 7 (App. Bd. Jan. 15, 2003)

Procedural Posture

SOR issuedDec 22, 2006
Answer filed—
Hearing heldJul 30, 2007
Decision dateDec 4, 2007

Cite For

Substantial Evidence Required to Support Findings of Academic Misconduct
Insufficient Mitigation Arguments in Cases of Personal Conduct
Weighing of Evidence in Security Clearance Determinations 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 involved a denial of a security clearance based on allegations of academic misconduct. The Applicant argued that the Judge's decision was arbitrary and that his past conduct should be mitigated. The Board affirmed the Judge's decision, finding no harmful error in the ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline E

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.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant contended that the Judge should have concluded that his past conduct was mitigated.
Erroneous finding of fact — raised by the applicantRejected
Applicant disputed the Judge's finding of academic misconduct at University B.
Whole-person analysis — raised by the applicantRejected
Applicant argued that the Judge failed to consider his overall character and achievements.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the Judge properly weighed the evidence in accordance with the law. The Board concluded that the Applicant did not demonstrate any harmful error in the Judge's decision.

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

Jeffrey D. Billett
Jean E. Smallin
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

KEYWORD: Guideline E DIGEST: As the trier of fact the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable or vice versa. The Judge’s finding that Applicant engaged in academic misconduct is sustainable. Adverse decision affirmed. CASENO: 06-22400.a1 DATE: 12/04/2007 DATE: December 4, 2007 In Re: Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-22400

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 December 22, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended)(Directive). Applicant requested The Judge made formal findings favorable to Applicant on two other SOR allegations, one alleging a cheating incident at University A in 2000 and another alleging that Applicant was advised of the local criminal tresspass law as he was being escorted off campus by campus police in April 2004 after being expelled from University B. a hearing. On July 30, 2007, after the hearing, Administrative Judge Edward W. Loughran denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision was arbitrary, capricious, or contrary to law. Because Applicant fails to establish error on the part of the Judge, the Board affirms the Judge’s decision. This case involves allegations of academic dishonesty. One SOR allegation alleges that Applicant was found guilty of plagiarism by University A in 1999. On appeal, Applicant does not dispute the allegation or the underlying conduct. He does argue that the Judge should have concluded that the conduct was mitigated. Another SOR allegation alleges that Applicant was found guilty of academic misconduct by University B in November 2003. While Applicant admits the historical fact of the finding of misconduct by University B, he denies the underlying conduct and alleges error on the part of the Judge for finding that the underlying conduct occurred. Additionally, Applicant argues that consideration of the “whole person” mandated a favorable decision. Applicant argues that the 1999 act of plagiarism is mitigated because of the passage of time and that, in the eyes of University A, his conduct was mitigated because they changed his grade from a grade indicating academic dishonesty to a straight “F.” Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The application of Adjudicative Guidelines disqualifying and mitigating conditions does not turn simply on a finding that one or more of them applies to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole. See, e.g., ISCR Case No. 01-14740 at 7 (App. Bd. Jan. 15, 2003). 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. In this case, the Judge did not analyze the 1999 plagiarism in isolation, but instead properly considered its security significance with reference to other evidence in the record, including a subsequent instance of academic dishonesty. Applicant’s disagreement with the Judge’s weighing of the record evidence, or his ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. Applicant argues that he was not guilty of academic dishonesty while enrolled in University B in 2003. He asserts that the university was engaged in unjustified retaliatory action against him for his actions in an unrelated matter. Applicant also asserts that there was insufficient documentary evidence to support a finding that he engaged in academic misconduct. We have reviewed the Judge’s findings and the record as a whole, including Applicant’s hearing testimony. The Judge’s finding that Applicant engaged in academic misconduct at University B in 2003 is based on substantial evidence and reflects a reasonable interpretation of the record evidence. See 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)). Applicant also argues that considering him as a whole person, the Judge’s decision must be reversed. He points to his academic achievements and his successful work history and reputation since the instances of academic dishonesty. A review of the Judge’s decision indicates that the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying circumstances, and considered the possible application of relevant mitigating conditions and factors. He reasonably explained why the evidence which Applicant had presented in mitigation was insufficient to overcome the government’s security concerns. The Judge has articulated a rational explanation for his unfavorable determination under the disqualifying and mitigating factors as well as the whole-person concept.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Jeffery D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board