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ISCR Case 07-16653.a1 — CASE

ISCR Case 07-16653.a1denied

Case Headnote

ISCR Case No. 07-16653.a1

May 1, 2012· Hon. Jean E. Smallin· appeal

Summary

A Navy veteran working in information technology was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline F (Financial Considerations), and Guideline M (Use of Information Technology). The denial stemmed from the applicant's intentional omission of significant information from his security clearance application.

Specifically, the judge found that the applicant's credibility was undermined by his failure to disclose a prior drug test and various employment issues. These omissions were deemed intentional, leading to the application of Disqualifying Condition AG ¶ 16. No mitigating conditions were applied under AG ¶ 20.

The appeal board affirmed the denial, concluding there were no due process violations and upholding the judge's findings regarding the applicant's intentional omissions and lack of credibility.

Conditions Referenced

Disqualifying

AG ¶ 16raisedPersonal Conduct

Mitigating

AG ¶ 20notedMitigating Conditions

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 issuedJun 16, 2011
Answer filed—
Hearing heldFeb 1, 2012
Decision dateMay 1, 2012

Cite For

Consideration of Uncharged Misconduct in Credibility Determinations
Intentional Omissions in Security Clearance Applications
Due Process in Security Clearance Hearings

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 financial considerations, personal conduct, and use of information technology systems. The applicant argued that the Judge's consideration of uncharged misconduct denied him due process. The Board affirmed the Judge's decision, finding no harmful error and that the decision was supported by substantial evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMarc E. Curry — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline EGuideline M

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's consideration of uncharged misconduct denied him due process.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the applicant was not denied due process. The Judge's consideration of uncharged misconduct was deemed appropriate for assessing credibility.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

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

KEYWORD: Guideline F; Guideline E; Guideline M DIGEST: Conduct not alleged in a SOR may be considered for several reasons, including a credibility determination. Applicant was not denied the due process afforded him by the Directive. Adverse decision affirmed. CASE NO: 07-16653.a1 DATE: 05/01/2012 DATE: May 1, 2012 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-16653

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Timothy Aiken, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On June 16, 2011, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations), Guideline E (Personal Conduct), and Guideline M (Use of Information Technology Systems) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 1, 2012, after the hearing, Administrative Judge Marc E. Curry denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge’s consideration of conduct not contained in the SOR denied Applicant due process and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guidelines F and M are not at issue in this appeal. Consistent with the following, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: Applicant is employed in the field of information technology. He has worked for his current employer since March 2011. Applicant served in the Navy during 1997. He did not complete basic training, receiving a general discharge under honorable conditions after a positive urinalysis for marijuana. Previously Applicant worked for another Defense contractor. During that period of employment, Applicant was alleged to have created directory files and scripts without obtaining permission from the system administrator. Applicant stated that he was not aware that his conduct was wrongful. Although he was found to have been trying to minimize the risk of operator error rather than to have been acting maliciously, the Government client requested that he be removed from the contract. Applicant submitted a resignation in lieu of dismissal due to these allegations. However, his employer rehired him several days later. In completing his security clearance application (SCA), Applicant denied that he had, within the previous seven years, been fired from a job, quit, or left under unfavorable circumstances. Moreover, in response to questions about his discharge from the Navy, he advised a security clearance investigator that it was the result of a knee injury. He did not disclose his failed drug test. Applicant testified that he had told the investigator about the drug test, but that the investigator had not included it in the summary of Applicant’s interview. However, when the summary was presented to Applicant as part of a series of DOHA interrogatories in 2009, Applicant certified that the summary was accurate. This apparent false statement was not alleged in the SOR. In the Analysis, the Judge concluded that Applicant’s SCA omission was intentional. In so doing, the Judge considered the plain language of the question at issue, as well as the uncharged misconduct regarding his failed drug test. The Judge stated that he was considering this misconduct in performing his credibility determination. The Judge ultimately concluded that Applicant had not mitigated the concerns arising from his omission to the SCA. Applicant contends that the Judge erred by considering the uncharged misconduct. He stated that he had not been placed on notice that this evidence would be considered and that by doing so the Judge had denied him an opportunity to prepare his case. This evidence was contained in Government Exhibit (GE) 2, Answers to Interrogatories, dated January 12, 2010. Applicant did not object to the admission of this exhibit. Tr. at 15. The Directive requires a Department Counsel to provide an applicant with a copy of all documentary evidence to be submitted at a hearing (Directive ¶ E3.1.13). The exhibit is cited several times in the transcript, and there is nothing in the record to suggest that Department Counsel failed to provide Applicant with a copy. See ISCR Case No. 07- 18324 at 6 (App. Bd. Mar. 11, 2011) (Federal agencies are entitled to a presumption of good faith and regularity in the performance of their responsibilities). Moreover, conduct not alleged in a SOR may be considered for a number of reasons, including assessing an applicant’s credibility. See, e.g.,

FOOTNOTES

1 Cf. Federal Rule of Evidence 404(b) provides that evidence of uncharged acts may be considered for a number of reasons, including proof of intent, motive, and lack of mistake. ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006).1 This is the context which the Judge discussed the challenged evidence. Accordingly, we conclude that Applicant was not denied the due process afforded by the Directive. The record supports a conclusion that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice 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)). The Judge’s adverse 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, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” 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