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ISCR Case 09-05655.a1 — CASE

ISCR Case 09-05655.a1granted

Case Headnote

ISCR Case No. 09-05655.a1

Aug 24, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

A program manager for a Defense contractor was granted a security clearance despite initial concerns under Guideline E (Personal Conduct) and Guideline L (Outside Activities). The issues stemmed from his failure to disclose an association with another Defense contractor on his security clearance application.

During an OPM interview, the applicant voluntarily disclosed his previous employment with Company B and corrected the omission without being prompted. This proactive cooperation was a significant mitigating factor. Additionally, the President of Company A, the applicant's current employer, provided a letter confirming there was no conflict of interest with his duties.

Ultimately, a favorable whole-person analysis, considering the applicant's voluntary disclosure and corrective actions, led to the granting of his security clearance.

Conditions Referenced

Mitigating

AG ¶ 20(a)appliedMitigating Condition 1The applicant voluntarily disclosed information that was not initially provided.
AG ¶ 20(c)appliedMitigating Condition 3The applicant demonstrated a willingness to cooperate with the investigation.

Key Rule Quoted

“The Judge’s favorable finding under Guideline L is not at issue in this appeal.”

Procedural Posture

SOR issuedDec 29, 2009
Answer filed—
Hearing heldMay 12, 2010
Decision dateAug 24, 2010

Cite For

Mitigation of Security Concerns Through Proactive Disclosure Under Guideline E
Whole-person Analysis Supporting Favorable Outcomes
Cooperation with Investigations as a Mitigating Factor Under Guideline L

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 security clearance decision where the Administrative Judge granted the applicant a clearance despite concerns under Guideline E and L. The Department Counsel appealed, arguing that the Judge's analysis was flawed. The Board affirmed the Judge's decision, finding no harmful error in the application of mitigating conditions or the whole-person analysis.

Appealed bythe Government (Department Counsel)

Applicant representationAttorney

Judge belowMark Harvey — granted the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline L

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the Government (Department Counsel)Rejected
Department Counsel argued that the Judge's application of Guideline E mitigating conditions and whole-person analysis was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's findings supported a favorable whole-person analysis and that the decision was sustainable based on the evidence presented.

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

Jean E. Smallin
James E. Moody
Michael Y. Ra’anan — Chair
Included a dissent

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 L DIGEST: Applicant’s presentation sufficient to mitigate Guideline E security concerns arising from omission to SCA. Record supports a favorable whole-person analysis. Favorable decision affirmed. CASENO: 09-05655.a1 DATE: 08/24/2010 DATE: August 24, 2010 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-05655

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Julie R. Mendez, Esq., Department Counsel FOR APPLICANT Elizabeth L. Newman, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On December 29, 2009, 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 L (Outside Activities) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On May 12, 2010, after the hearing, Administrative Judge Mark Harvey granted Applicant’s request for a security clearance. Department Counsel appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issues on appeal: whether the Judge erred in his application of the pertinent Guideline E mitigating conditions and whether the Judge’s whole-person The Judge’s favorable finding under Guideline L is not at issue in this appeal. analysis was arbitrary, capricious, or contrary to law. Consistent with the following discussion, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: Applicant is a program manager for a Defense contractor, Company A. He holds a Bachelor’s degree in civil engineering and a Master’s in Environmental Engineering. Applicant has been employed by Company A for 11 years. From 2006 until 2009, he also was associated with Company B, another Defense contractor. He provided Company B with technical oversight, to ensure contract compliance. Applicant did not receive a salary from Company B, but he did receive shares of stock along with attendant dividends. Applicant grew disenchanted with the business practices of Company B, concluding that others associated with the company were not putting in sufficient effort. He also was concerned about possible improprieties in the company’s IRS filings. In March 2009, Applicant completed a security clearance application (SCA). Section 13 of the SCA inquired about an applicant’s employment for the previous 7 years, whether full time or part time, paid or unpaid, consulting or contracting, etc. Applicant did not disclose his work for Company B. Subsequently, in April 2009, Applicant was interviewed by an OPM investigator. Applicant volunteered information about his employment with Company B without first having been asked. “There is no evidence that OPM would have inevitably discovered the existence of Applicant’s relationship with [Company B].” Decision at 5. Applicant did not want Company A to learn about his association with Company B. This was due to the disagreement he had with Company B over their business practices. Within 30 days of the interview, Applicant terminated his relationship with Company B, giving back his shares of stock. He then informed Company A of that relationship.

We have examined the issues raised by Department Counsel in light of the record as a whole. We note the Judge’s findings and record evidence that Applicant had (1) corrected the omission in his SCA without first having been confronted with the facts; (2) cooperated with the follow-up questioning by the investigator; (3) resigned form Company B; (4) notified Company A of his association with the other company; and (5) received a letter from the President of Company A to the effect that Applicant’s work with Company B had not been in conflict with his duties at Company A. We conclude that these unchallenged findings support a favorable whole-person analysis and that the Judge’s decision is sustainable.

ORDER

The Judge’s favorable security clearance decision is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board SEPARATE OPINION OF ADMINISTRATIVE JUDGE MICHAEL Y. RA’ANAN I cannot vote to affirm because Applicant made an additional statement which undercuts mitigation. In his response to the SOR he explains his failure to list his positions with Company B (President, Chief Executive Officer and a member of the Board of Director’s). He first explains that he did not list it under Question 13 (Employment) because he was not an employee. He later adds that he knew that it was information of interest “but there did not seem to be any appropriate place to put it on the SF-86." While the most straightforward place to put such information he knew was of interest was in Question 13, there was actually another place he could have put information. There is an Additional Comments section at the end of the form. He left it blank. His explanation in his response to the SOR that there did not seem to be any appropriate place to put it on the SF-86 is not credible, and is recent. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board