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ISCR Case 09-00274.a1 — CASE

ISCR Case 09-00274.a1denied

Case Headnote

ISCR Case No. 09-00274.a1

Dec 8, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

A senior administrative associate for a defense contractor was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline K (Handling Protected Information). The denial stemmed from multiple security violations, including the failure to secure classified documents.

Additionally, the applicant made false statements regarding illegal drug use on security clearance applications. These actions raised disqualifying conditions under both guidelines.

Despite the applicant's claims of rehabilitation, the judge determined there was insufficient evidence to mitigate the security concerns. The decision emphasized the significant burden on applicants to demonstrate a clear resolution of such violations.

Conditions Referenced

Disqualifying

AG EraisedPersonal Conduct
AG KraisedHandling Protected Information

Key Rule Quoted

“Once it is established that an applicant has committed security violations, he or she has a 'very heavy burden' of persuasion as to mitigation.”
— ISCR Case No. 06-21537 at 4 (App. Bd. Feb. 21, 2008)

Procedural Posture

SOR issuedAug 20, 2009
Answer filed—
Hearing heldAug 30, 2010
Decision dateDec 8, 2010

Cite For

Heavy Burden of Persuasion for Applicants with Security Violations
Strict Scrutiny of Claims of Rehabilitation
False Statements on Security Clearance Applications Impact Eligibility

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 an applicant who was denied a security clearance due to multiple security violations and false statements regarding drug use. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the ruling.

Appealed bythe applicant

Applicant representationAttorney

Judge belowElizabeth M. Matchinski — denied the clearance

Decided ona hearing

Guidelines belowGuideline KGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board affirmed the Judge's decision, finding that the Judge properly considered the evidence and articulated a rational connection between the facts and the decision made. The applicant's claims of rehabilitation were subjected to strict scrutiny due to the serious nature of the security violations committed.

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 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 K; Guideline E DIGEST: An applicant who has committed security violations has a very heavy burden on appeal. Such violations strike at the very heart of the industrial security program. Thus claims of reform or rehabilitation require strict scrutiny. Adverse decision affirmed. CASENO: 09-00274.a1 DATE: 12/08/2010 DATE: December 8, 2010 In Re: -------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-00274

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Gina L. Marine, Esq., Department Counsel FOR APPLICANT Alan V. Edmunds, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 20, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline K (Handling Protected Information) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On August 30, 2010, after the hearing, Administrative Judge Elizabeth M. Matchinski 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’s decision was arbitrary, capricious, or contrary to law. Consistent with the following discussion, we affirm the decision of the Judge. The Judge found that Applicant is a senior administrative associate for a defense contractor’s security department. She has worked for this employer since 1984 and has held her current position since November 2005. She has held a security clearance since 1984. Between 2001 and 2005 Applicant committed five security violations. On four occasions she failed to secure the document control area and on another she failed to protect a classified document. Regarding this last incident, the document was knocked off Applicant’s desk into a waste basket and deposited in a trash bin. It was recovered six days later at a refuse facility. Additionally, Applicant used marijuana from 1974 until 1995 and cocaine from 1986 until 1994. Much of this use occurred while Applicant held a security clearance. In 1997 Applicant answered “no” to a question on her security clearance application (SCA) as to whether she had used illegal drugs within the previous seven years. This answer was false, due to the drug use described above. Additionally, in SCAs completed in 1997, 2002, and 2008 Applicant answered “no” to a question inquiring about whether she had ever used illegal drugs while holding a security clearance. Although these false answers were not alleged in the SOR, the Judge considered them on the question of rehabilitation. See ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006). In the Analysis portion of her decision, the Judge acknowledged the passage of time since Applicant’s last security violation. However, she concluded that this was not sufficient to mitigate the security concerns arising from Applicant’s security violations, especially insofar as, during the intervening years, Applicant had limited access to classified information, which diminished her opportunity to demonstrate rehabilitation. The Judge also noted that following her various security incidents Applicant had received counseling, yet she committed further violations despite that fact. Regarding the false statement, the Judge properly took notice of the other, more recent, falsifications, which are inconsistent with rehabilitation and reform. Applicant contends that the Judge did not consider all of the record evidence, or did not properly weigh the evidence, to include her many years of incident-free service and the supportive testimony provided by co-workers and friends. However, Applicant’s presentation on appeal is not sufficient to rebut the presumption that the Judge considered all of the record evidence. See, e.g., ISCR Case No. 09-01735 at 2 (App. Bd. Aug. 31, 2010). Neither is Applicant’s presentation sufficient to demonstrate that the Judge’s decision was contrary to the greater weight of the record evidence. See, e.g., ISCR Case No. 09-01970 at 3 (App. Bd. Oct. 29, 2010). Once it is established that an applicant has committed security violations, he or she has a “very heavy burden” of persuasion as to mitigation. Such violations “strike at the heart of the industrial security program.” Accordingly, a Judge must give any claims of reform or rehabilitation “strict scrutiny.” ISCR Case No. 06-21537 at 4 (App. Bd. Feb. 21, 2008). 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).

ORDER

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