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ISCR Case 15-08577.a1 — CASE

ISCR Case 15-08577.a1denied

Case Headnote

ISCR Case No. 15-08577.a1

Jul 6, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A military service member was denied a security clearance under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The denial stemmed from the applicant's failure to disclose an extramarital affair and financial support provided to the individual involved in the affair.

The judge determined that the applicant's misconduct was serious and recent, directly influencing the security clearance decision. This non-disclosure of critical information during the security clearance process was a primary factor in the denial.

On appeal, the board affirmed the initial denial. The applicant's arguments were found insufficient to demonstrate that the judge's decision was arbitrary or capricious, leading to the final denial of the security clearance.

Conditions Referenced

Disqualifying

AG E2raisedPersonal ConductThe applicant engaged in an extramarital affair and failed to disclose this relationship.

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 issuedJun 10, 2016
Answer filed—
Hearing heldApr 21, 2017
Decision dateJul 6, 2017

Cite For

Affirmation of Adverse Decision Based on Failure to Disclose Personal Conduct Under Guideline E
Importance of Full Disclosure in Security Clearance Applications
The Standard for Granting Clearance as Consistent with 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 involved an applicant seeking a security clearance who was denied due to concerns under Guideline B and Guideline E. The applicant argued that the Judge failed to consider all evidence and misapplied mitigating conditions. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationAttorney

Judge belowLeRoy F. Foreman — denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge failed to consider all of the evidence.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant contended that the Judge's application of the mitigating conditions was erroneous.
Whole-person analysis — raised by the applicantRejected
Applicant claimed that the Judge's whole-person analysis was erroneous.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the applicant's arguments did not demonstrate that the Judge's weighing of the evidence was arbitrary or capricious. The Judge's findings and analysis were deemed compliant with the required procedures and standards.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Ra’anan — Chair
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 B; Guideline E DIGEST: Applicant’s arguments amount to a disagreement with the Judge’s weighing of the evidence, which is not enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Adverse decision affirmed. CASENO: 15-08577.a1 DATE: 07/06/2017 DATE: July 6, 2017 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-08577

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Shane C. Brengle, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On June 10, 2016, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Department Counsel requested a hearing. On April 21, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge LeRoy F. Foreman denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge failed to consider all of the evidence, whether the Judge’s application of the mitigating conditions was erroneous, and whether the Judge’s whole-person analysis was erroneous. The Judge’s favorable findings under Guideline B are not at issue in this appeal. Consistent with the following, we affirm. The Judge’s Findings of Fact The Judge made the following findings pertinent to the issues raised on appeal: in 2011 and 2012, Applicant served in the military in a position that required him to travel frequently to the Philippines for temporary duty (TDY). He became involved with a woman in that country, their relationship progressing from casual friendship to one of sexual intimacy. They engaged in sexual activity about three times toward the end of his tour of duty and communicated by email every two or three months after Applicant’s return to the U.S. Applicant sent the woman about $200 twice a year until mid-2016, at which time he broke off the relationship. Applicant did not disclose this relationship to his wife, military superiors, or security officer. When completing his 2015 security clearance application (SCA), Applicant did not disclose this relationship, nor did he disclose the financial support that he provided to her. He did not disclose this information because he was embarrassed. In his answer to the SOR he admitted that he did not disclose this relationship until he was interviewed by a security investigator. The Judge’s Analysis The SOR alleged under Guideline E that Applicant had engaged in an extramarital affair with the Philippine woman and that he had not disclosed on his SCA the extramarital affair and the financial support that he had provided her. The Judge entered adverse findings for each of these allegations, concluding that Applicant’s misconduct was serious and recent. He cited to evidence that Applicant had failed to disclose this information to his son or employer. In addition, as regards the falsifications, the Judge cited to prior case law that characterizes false statements made during a clearance adjudication as striking at the heart of the clearance process.

DISCUSSION

Applicant cites to evidence that he contends the Judge did not consider. For example, he argues that some aspects of his circumstances were unique and, therefore, unlikely to recur. He cites to his history of loyal service to the U.S. and to the embarrassment he felt because of his affair. Applicant has not rebutted the presumption that the Judge considered all of the evidence. See, e.g., ISCR Case No. 13-00502 at 3 (App. Bd. Mar. 7, 2017). Applicant’s arguments amount to a disagreement with the Judge’s weighing of the evidence, which is not enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15-08842 at 3 (App. Bd. Feb. 14, 2017). Moreover, the Judge’s whole person analysis complies with the requirements of Directive ¶ 6.3, in that the Judge considered the totality of the evidence in reaching his decision. See, e.g., ISCR Case No. 14-06653 at 3 (App. Bd. Nov. 18, 2016). 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: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, 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