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ISCR Case 07-03289.a1 — CASE

ISCR Case 07-03289.a1denied

Case Headnote

ISCR Case No. 07-03289.a1

Feb 13, 2008· Hon. Jean E. Smallin· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline E (Personal Conduct). The denial was based on concerns that the applicant's personal conduct raised disqualifying conditions (E2) that had not been mitigated.

The appeal board affirmed the denial, concluding that the applicant failed to demonstrate that the judge's decision was arbitrary or capricious. The board found that the judge reasonably weighed the evidence presented and adequately explained why the mitigating evidence offered by the applicant was insufficient to overcome the government's security concerns.

Ultimately, the applicant did not meet the burden of demonstrating that the judge erred in concluding that the personal conduct allegations remained unmitigated, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

E2raisedPersonal Conduct

Key Rule Quoted

“Once there has been a concern articulated regarding an applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance.”
— Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)

Procedural Posture

SOR issuedMay 10, 2007
Answer filed—
Hearing held—Applicant requested decision on written record.
Decision dateFeb 13, 2008

Cite For

Burden of Proof in Security Clearance Cases Under Guideline E
Presumption Against Granting Security Clearance After Concerns Are Raised
Judge's Discretion in Weighing Evidence and Making Decisions

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 personal conduct under Guideline E. The Applicant argued that the Judge's decision was arbitrary and capricious due to partial quoting of evidence. The Board affirmed the Judge's decision, finding no harmful error in the Judge's reasoning or conclusions.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMartin H. Mogul — denied the clearance

Decided onthe written record

Guidelines belowGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse security clearance decision was arbitrary, capricious, and contrary to law due to partial quoting of a statement.

Why the Board ruled this way

The Board found that the Judge's decision was not arbitrary, capricious, or contrary to law, and that the Judge reasonably weighed the evidence presented by the Applicant against the government's security concerns.

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 DIGEST: A Judge has broad discretion in how to write a security clearance decision. The Judge is not required to cite or discuss every piece of evidence. Adverse decision affirmed. CASENO: 07-03289.a1 DATE: 02/13/2008 DATE: February 13, 2008 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-03289

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 May 10, 2007, 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 that the case be decided upon the written record. On September 28, 2007, after considering the record, Administrative Judge Martin H. Mogul denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse security clearance decision is arbitrary, capricious or contrary to law. Applicant argues that the Judge’s adverse security clearance decision is arbitrary, capricious and contrary to law because the Judge only partially quoted a statement made by Applicant in Item 5 of the government’s File of Relevant Material in his findings of fact. The Board does not find this argument persuasive. A Judge has broad discretion in how to write a security clearance decision subject to the legal constraints of the Directive and basic concepts of due process. See e.g., 03-07245 at 4 (App. Bd. May 20, 2005). There is a rebuttable presumption that the Judge considered all the record evidence unless he specifically states otherwise. See, e.g., DOHA Case No. 96-0228 at 3 (App. Bd. Apr. 3, 1997). The Judge is not required to cite or discuss every piece of record evidence. See, e.g., DISCR Case No. 90-1596 at 5 (App. Bd. Sep. 18, 1992). After reviewing the record, the Board concludes that the Judge reasonably considered the evidence as a whole, including Item 5, and that his material findings of security concern are sustainable. Once there has been a concern articulated regarding an applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). After th the government 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. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole. See, e.g., ISCR Case No. 06-10950 at 2 (App. Bd. Jul. 25, 2007). 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. See, e.g., ISCR Case No. 05-11134 at 2 (App. Bd. Nov. 16, 2007). 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. See, e.g., ISCR Case No. 05-07183 at 2 (App. Bd. Jun. 26, 2007). Applicant has not met his burden of demonstrating that the Judge erred in concluding that the personal conduct allegations had not been mitigated. Although Applicant strongly disagrees with the Judge’s conclusions, he has not established that those conclusions are arbitrary, capricious, or contrary to law. See Directive ¶ E3.1.32.3. In this case the Judge weighed the mitigating evidence offered by Applicant against the recency and seriousness of the disqualifying conduct, and reasonably explained why the evidence which Applicant had presented in mitigation was insufficient to overcome 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. Jun. 29, 2005). Given the record that was before him, the Judge’s ultimate unfavorable security 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