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ISCR Case 15-03785.a1 — CASE

ISCR Case 15-03785.a1denied

Case Headnote

ISCR Case No. 15-03785.a1

Jun 8, 2017· Hon. James E. Moody· appeal

Summary

An applicant representing himself was denied a security clearance under Guideline E (Personal Conduct) and Guideline K (Handling Protected Information). The denial stemmed from the applicant's admission to six security violations that occurred between 1991 and 2010.

Specifically, disqualifying conditions K.1 and E.2 were raised due to these admitted violations. The decision highlighted the absence of independent evidence to demonstrate significant changes in the applicant's conduct or any form of rehabilitation that would mitigate the security concerns.

The applicant bore the burden of persuasion to provide such mitigating evidence, but failed to do so. Consequently, the clearance was denied, underscoring the paramount importance of national security in these determinations.

Conditions Referenced

Disqualifying

K.1raisedHandling Protected Information
E.2raisedPersonal Conduct

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 issuedJan 19, 2016
Answer filed—
Hearing heldMar 23, 2017
Decision dateJun 8, 2017

Cite For

Admitted Security Violations Under Guideline K and Guideline E
Lack of Independent Evidence for Rehabilitation
Importance of National Security in Clearance Determinations

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 security violations under Guideline K and Guideline E. The Applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful error in the Judge's conclusions regarding the lack of mitigating evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMartin H. Mogul — denied the clearance

Decided onthe written record

Guidelines belowGuideline KGuideline E

What the Board reviewed

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

Why the Board ruled this way

The Board found no error in the Judge's conclusion that the Applicant did not present sufficient evidence to mitigate the security concerns raised against him. The Applicant admitted to multiple security violations and failed to provide independent evidence of changed conduct.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appealBurden of persuasion

Appeal Board panel

William S. Fields
James E. Moody
James F. Duffy

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: Applicant admitted the security violations alleged in the SOR, and was responsible for presenting witnesses and other evidence in rebuttal, explanation, extenuation, or mitigation. Adverse decision affirmed. CASENO: 15-03785.a1 DATE: 06/08/2017 DATE: June 8, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-03785

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On January 19, 2016, DoD 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 decision on the written record. On March 23 2017, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Martin H. Mogul 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, we affirm. The Judge’s Findings of Fact and Analysis Applicant admitted that he committed six security violations between 1991 and 2010. Applicant wrote that he takes his responsibilities very seriously, the alleged incidents were not the result of disregard of procedures, he has learned from his mistakes, and he is much more careful today. “While it has been several years since Applicant was last cited or involved with security violations, no independent evidence, such as character letters, employment evaluations, or counselling or remedial security training reports, has been introduced to establish that Applicant has significantly changed his conduct to insure that these violations will not occur in the future. . . .” Decision at 5. The Judge concluded no mitigating conditions applied in this case.

DISCUSSION

Applicant challenges the Judge’s conclusion that no independent evidence was introduced to establish that he significantly changed his conduct to ensure security violations will not occur in the future. In this regard, he points out that, in his response to Department Counsel’s File of Relevant Material, he requested that the Government provide the Judge with the results of his coworker’s interviews that were obtained during his security investigation because he believed those interviews would have positive statements concerning his emphasis on security, overall stability, and suitability for a position of trust. We do not find this argument persuasive. Because Applicant admitted the security violations alleged in the SOR, he was responsible for presenting witnesses and other evidence in rebuttal, explanation, extenuation, or mitigation. He also had the ultimate burden of persuasion for obtaining a favorable clearance decision. Directive ¶ E31.15. Department Counsel had no obligation to present evidence in mitigation. The record presented to the Judge did not contain the results of the coworker’s interviews. From our review of the record, we find no error in the Judge’s challenged conclusion. In the appeal brief, Applicant submitted character letters, employment evaluations, training records, and other documents that were not presented to the Judge for consideration. Such documents constitute new evidence that the Appeal Board cannot consider. Directive ¶ E31.29. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The 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 Decision is AFFIRMED. Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board