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ISCR Case 09-03983.a1 — CASE

ISCR Case 09-03983.a1denied

Case Headnote

ISCR Case No. 09-03983.a1

Dec 21, 2010· Hon. Jeffrey D. Billett· appeal

Summary

A 40-year-old former military officer was denied a security clearance under Guideline E (Personal Conduct) and Guideline M (Use of Information Technology Systems). The denial stemmed from past conduct involving an affair and the misuse of government equipment.

Specifically, the applicant lied to his commanding officer about the improper relationship, and he was convicted at a general court-martial for multiple offenses related to these actions. These issues raised disqualifying conditions E2.A5.1.2 and E2.A5.1.3.

The appeal board upheld the denial, concluding that the applicant had not sufficiently mitigated the security concerns arising from his lack of honesty and the misuse of government resources.

Conditions Referenced

Disqualifying

E2.A5.1.2raisedPersonal Conduct
E2.A5.1.3raisedUse of Information Technology Systems

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 issuedMar 30, 2010
Answer filed—
Hearing heldSep 30, 2010
Decision dateDec 21, 2010

Cite For

Insufficient Mitigation of Personal Conduct Under Guideline E
Impact of Dishonesty on Security Clearance Determinations
The Standard for Granting Security Clearances in Relation to National Security Interests

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 was brought by the applicant after the Administrative Judge denied his request for a security clearance based on security concerns under Guideline E and Guideline M. The applicant argued that the Judge's decision was arbitrary and capricious, claiming that the Judge did not adequately consider his evidence of mitigation. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationAttorney

Judge belowEdward W. Loughran — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline M

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge did not consider or did not give adequate weight to Applicant’s evidence of mitigation.

Why the Board ruled this way

The Board concluded that the Judge examined the relevant data and articulated a satisfactory explanation for his decision, including a rational connection between the facts found and the choice made. The Judge's unfavorable security clearance decision is sustainable.

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; Guideline M DIGEST: There is no requirement that a judge discuss or mention every piece of evidence in reaching a decision. Adverse decision affirmed. CASENO: 09-03983.a1 DATE: 12/21/2010 DATE: December 21, 2010 In Re: -----------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-03983

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT James W. Green, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On March 30, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under 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 September 30, 2010, after the hearing, Administrative Judge Edward W. Loughran 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 is arbitrary, capricious, or contrary to law. Specifically, Applicant contends that the Judge did not consider or did not give adequate weight to Applicant’s evidence of mitigation. In support of his argument, Applicant cites other Hearing Office decisions which he maintains support the granting of a security clearance in his case. The Judge made the following findings of fact: Applicant is forty years old and is a graduate of a military service academy. Applicant served as a military officer until he received a dismissal from a general court-martial in 2007. During 2004-2005, Applicant had an affair with the wife of another officer. Using government computer equipment, Applicant sent sexually explicit pictures to that woman and received similar pictures from her. Over a period of several months, Applicant was asked several times by his commanding officer if he had an improper relationship with the woman. Applicant lied on each occasion. At the general court-martial, Applicant pleaded guilty to, and was convicted of, violating a military general regulation by misuse of government computer equipment with respect to offensive material, making multiple false statements to his commanding officer, and committing adultery. In addition to his dismissal from the service, Applicant spent 23 days in confinement. Other than the actions just described, Applicant’s military service was outstanding. Applicant’s performance in his subsequent civilian job has been excellent. Applicant submitted letters of reference. The writers of those letters attest to his character. Applicant argues that he has mitigated any security concerns that might exist under Guideline E and Guideline M and that the Judge either did not consider or did not give adequate weight to his evidence of mitigation. There is a rebuttable presumption that the Judge considered all the record evidence, unless the Judge specifically states otherwise; and there is no requirement that the Judge mention or discuss every piece of record evidence when reaching a decision. See, e.g., ISCR Case No. 08-03845 at 2 (App. Bd. Feb. 24, 2009). Applicant admitted the SOR allegations against him. The burden then shifted to Applicant to extenuate or mitigate the security concerns raised by those allegations. Directive ¶ E3.1.15. The Judge concluded that Applicant did not present evidence sufficient to overcome the security concerns raised. 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. Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance determination. 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. A party’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 that 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. 07-18303 at 2-3 (App. Bd. Nov. 13, 2008). Applicant cites two other Hearing Office decisions which he maintains support the granting of his security clearance. The Board gives due consideration to these cases. However, each case must be decided on its own merits. Directive, Enclosure 2 ¶ 2(b). Moreover, Hearing Office Decisions are binding neither on other Hearing Office Judges nor on the Board. See, e.g., ISCR Case No. 06-24121 at 2 (App. Bd. Feb. 5, 2008). Nothing in the cases cited by Applicant establishes error on the part of the Judge.

After reviewing the record as a whole, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for his 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 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). Accordingly, the Judge’s ultimate unfavorable security clearance decision is sustainable.

ORDER

The Judge’s decision denying Applicant a security clearance is AFFIRMED. Signed: Jeffrey 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