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ISCR Case 08-07613 — CASE

Case record

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

Decision Date7/30/2009
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 08-07613.h1) →
Participants
Applicant Representation: Pro Se
Judge: Michael Y. Ra'anan, James E. Moody, William S. Fields
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline BForeign Influence · Against Applicant
- Guideline DSexual Behavior · Against Applicant
- Guideline EPersonal Conduct · Against Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
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ISCR Case 08-07613denied

Case Headnote

ISCR Case No. 08-07613

Jul 30, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied clearance due to concerns under Guideline B (Foreign Influence), Guideline D (Sexual Behavior), and Guideline E (Personal Conduct). The denial stemmed from an undisclosed extra-marital affair with a woman from Ecuador.

The applicant failed to disclose this affair on his security clearance application. Furthermore, he provided financial support to the foreign national, which raised concerns regarding potential foreign influence and issues of personal conduct. Although the judge determined the applicant was subject to duress, this factor did not mitigate the overall security concerns.

The appeal board affirmed the denial, concluding that the applicant's conduct, specifically the undisclosed affair and financial support to a foreign national, was inconsistent with national security interests. Disqualifying conditions AG B1, AG D1, and AG E2 were cited in the decision.

Conditions Referenced

Disqualifying

AG B1raisedForeign Influence
AG D1raisedSexual Behavior
AG E2raisedPersonal Conduct

Key Rule Quoted

“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 issuedJan 15, 2009
Answer filed—
Hearing heldJun 4, 2009
Decision dateJul 30, 2009

Cite For

Undisclosed Foreign Influence Under Guideline B
Failure to Disclose Personal Conduct Under Guideline E
Impact of Sexual Behavior on Security Clearance Eligibility Under Guideline D

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 concerns under Guidelines B, D, and E. The applicant argued that the Judge misapplied mitigating conditions. The Board affirmed the Judge's decision, finding no harmful error in the analysis.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDavid M. White — denied the clearance

Decided onthe written record

Guidelines belowGuideline BGuideline DGuideline E

What the Board reviewed

Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argued that the Judge erred in his analysis of the pertinent mitigating conditions.

Why the Board ruled this way

The Board found no error in the Judge's analysis of the mitigating conditions and concluded that the decision was sustainable based on the record.

Standard of review applied

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

Appeal Board panel

Michael Y. Ra’anan — Chair
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 B; Guideline D DIGEST: Since 2002, Applicant has conducted an extra-marital affair with a woman from Ecuador. He has not disclosed the affair to anyone except a friend. He has paid the woman $100 per month and bought phones for her to resell. Applicant failed to list the woman on his security clearance application. The Judge concluded that Applicant is subject to duress. Adverse decision affirmed. CASENO: 08-07613a.1 DATE: 07/30/2009 DATE: July 30, 2009 In Re: ---- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-07613

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 January 15, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline E (Personal Conduct), Guideline B (Foreign Influence) and Guideline D ( Sexual Behavior) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On June 4, 2009, after considering the record, Administrative Judge David M. White denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge erred in his analysis of the pertinent mitigating conditions. Finding no error, we affirm. The Judge found that, since 2002, Applicant has conducted an extra-marital affair with a woman from Ecuador. He has not disclosed the affair to anyone except a friend. He has not advised his supervisors or his spouse. He has paid the woman approximately $100 per month and has purchased cell phones for her to resell. When asked on his security clearance application (SCA) to list foreign associates, Applicant did not list the woman. The Judge concluded that, under the circumstances, Applicant is “subject to duress.” Decision at 12. In his brief, Applicant presents new evidence not contained in the record, including medical information which purportedly would demonstrate that he did not intend to falsify his SCA. The Board cannot consider this evidence. See Directive ¶ E3.1.29. (“No new evidence shall be received or considered by the Appeal Board”). See also ISCR Case No. 08-06518 at 2 (App. Bd. Mar. 3, 2009). After reviewing the record, the Board concludes 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 decision that “it is not clearly consistent with the interests of national security to grant or continue Applicant’s eligibility for a security clearance” is sustainable on this record. Decision at 13. See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, 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