KEYWORD: Guideline E
DIGEST: Applicant engaged in three episodes of security significant conduct over a sixteen year
period, namely, providing proprietary information to a foreign government and two incidents of
falsifying his security clearance applications.  Favorable decision reversed.
CASENO: 08-09163.a1
DATE: 12/21/2010
DATE: December 21, 2010
In Re:
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Applicant for Security Clearance
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ISCR Case No. 08-09163
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Tovah A. Minster, Esq., Department Counsel
FOR APPLICANT
Brian E. Kavenay, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On August 24, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of
2
the basis for that decision–security concerns raised under Guideline E (Personal Conduct) of
Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant
requested a hearing.  On September 15, 2010, after the hearing, Administrative Judge Martin H.
Mogul 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’s analysis and
conclusions were arbitrary, capricious, or contrary to law and whether the Judge’s whole-person
analysis was erroneous.  Consistent with the following discussion, we reverse the decision of the
Judge.
Facts
The Judge made the following pertinent findings of fact: Applicant, 73 years old, is
employed as an engineer by a Defense contractor.  He has held a DoD security clearance since
around 1960.  
In 1983, Applicant considered becoming a resident of Israel.  He got in touch with the Israeli
consulate in an effort to inquire about employment possibilities.  A liaison advised Applicant that
he would appreciate any information Applicant could provide about his work.  Applicant gave the
liaison a proprietary document, which described a “top level research project” in which his then
employer was engaged.  This document was not classified.
In 1994, Applicant submitted a security clearance application (SCA).  This document asked,
inter alia, whether Applicant had ever had any contact with a foreign government, to include
embassies or consulates.  Applicant answered “no” to this question, which was false in light of his
contact with the Israeli government in 1983.  
In 2000, Applicant submitted another SCA.  He answered “no” to a similar question.  Again,
this answer was false.  
In 2000, Applicant submitted to a polygraph.  He was asked whether he had ever had contact
with a representative of a foreign country.  Applicant initially denied that he ever had, but he then
admitted his contact with the Israeli consulate.  He initially denied this contact because he was
embarrassed and was concerned as to how a candid reply would have affected his clearance.  In
2001 he submitted to another polygraph.  During this examination he advised about his contact with
the Israeli government.  He also advised about this contact on a 2005 SCA.
Applicant enjoys an outstanding reputation among supervisors, co-workers, neighbors, and
other acquaintances for the quality of his job performance, his integrity, and his trustworthiness.
Discussion
A Judge is required to “examine the relevant data and articulate a satisfactory explanation
for” the decision, “including a ‘rational connection between the facts found and the choice made.’”
1Directive, Enclosure 2 ¶ 16(a): “deliberate omission, concealment, or falsification of relevant facts from any
personnel security questionnaire . . .”  
2“Directive, Enclosure 2 ¶ 16(d): “credible adverse information that is not explicitly covered under any other
guideline . . . which . . . supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability,
lack of candor, unwillingness to comply with rules and regulations . . . This includes but is not limited to consideration
of . . . untrustworthy or unreliable behavior to include . . . release of proprietary information[.]”  
3
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).  The Appeal
Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is
arbitrary, capricious, or contrary to law.  Directive ¶¶ E3.1.32.3 and E3.1.33.3.
Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong
presumption against the grant or maintenance of a security clearance.  See Dorfmont v. Brown, 913
F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991).  After the Government presents
evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those
concerns.  See Directive ¶ E3.1.15.  “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.  Rather, their application requires the exercise of sound discretion in light
of the record evidence as a whole.”  See, e.g., ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20,
2006).
In deciding whether the Judge's rulings or conclusions are arbitrary or capricious, the Board
will review the Judge's decision to determine whether:  it does not examine relevant evidence; it fails
to articulate a satisfactory explanation for its conclusions, including a rational connection between
the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of
judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision
that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere
difference of opinion.  In deciding whether the Judge's rulings or conclusions are contrary to law,
the Board will consider whether they are contrary to provisions of Executive Order 10865, the
Directive, or other applicable federal law.  See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2,
2006).
The Judge concluded that Applicant’s conduct raised Personal Conduct Disqualifying
Condition (PCDC) 16(a),1 which is sustainable in light of Applicant’s repeated false statements.
However, Department Counsel persuasively contends that the Judge erred by not also concluding
that the evidence raised PCDC 16(d).2  This paragraph states, among other things, that an applicant’s
release of proprietary information can raise Guideline E security concerns, insofar as such conduct
evidences untrustworthiness or unreliability.  The Judge’s findings demonstrate that Applicant
released such information to a representative of the Israeli government, in an effort to further his
own employment interests at a time in which he was considering moving from the United States to
Israel.  The Judge erred by not analyzing Applicant’s case in light of PCDC 16(d).
3Directive, Enclosure 2 ¶ 17(c): “the offense is so minor, or so much time has passed, or the behavior is so
infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the
individual’s reliability, trustworthiness, or good judgment[.]”  
4
Department Counsel argues that the Judge erred in his application of Personal Conduct
Mitigating Condition (PCMC) 17(c).3  While the Judge noted that a decade had passed since
Applicant’s last SCA falsification, Department Counsel persuasively argues that the Judge’s
discussion did not properly evaluate this passage of time in light of the entirety of the record
evidence.  The mere passage of time cannot be viewed in isolation and must be evaluated with
reference to other facts and circumstances in the case.  See, e.g., ISCR Case No. 08-05351 at 7-8
(App. Bd. Mar. 12, 2010).  In this case, Applicant engaged in security significant conduct by
providing proprietary information to a foreign government.  Over a decade later he falsified his SCA
concerning this matter and, six years after that, the falsified another SCA.  The Judge’s decision does
not reasonably explain why the mere passage of time (even, as here, when it is ten years) is
sufficient to mitigate multiple instances raising security concerns that occurred over an even longer
period of time.    
Furthermore, as Department Counsel argues, the decision does not reasonably explain why
the conduct in question occurred under unique circumstances or why it was minor.  While it is true
that there is no evidence of Applicant’s having compromised other proprietary information, this
incident and his subsequent falsifications constitute a series of security significant incidents.  The
evidence does not support a conclusion that the Guideline E concerns arose from unique
circumstances.  Rather, they resulted from conscious decisions by Applicant to advance his own
interests at the expense of his employer’s legitimate desire for the confidentiality of its work product
and to keep knowledge of that conduct from the Government.  That such behavior has not occurred
again is not due to anything inherent in the underlying circumstances but, rather, in Applicant’s own
choices.  Moreover, Applicant’s conduct, considered as a whole, cannot be said to be minor, insofar
as the Directive itself states that failure to provide truthful answers during the security clearance
process is of “special interest” in evaluating an applicant’s security worthiness.  Directive, Enclosure
2 ¶ 15.  Finally, Department Counsel persuasively contends that the Judge did not reasonably
address the final clause of PCMC 17(c), which requires a showing that the conduct does not cast
doubt on Applicant’s reliability, trustworthiness, or good judgment.  Accordingly, we conclude that
Department Counsel’s overarching issue that the Judge erred in his application of the mitigating
conditions is persuasive.  
Department Counsel argues that the Judge’s whole-person analysis does not add anything
not already contained in his analysis of PCMC 17(c).  This argument has merit, in light of the
relatively conclusory nature of the whole-person analysis section of the decision.  Accordingly, the
whole-person analysis does not provide an additional basis for the Judge’s favorable findings.  
4We note Government Exhibit 3, an affidavit by Applicant prepared in 2008, in which Applicant discusses
various aspects of his record as it pertains to his security worthiness.  He mentions a polygraph examination in 2001,
in which he advised about his interaction with the Israeli government.  He states that he passed the exam, which is
consistent with the record evidence in his case.  However, he does not mention the prior polygraph in 2000, in which
he initially denied having had contact with a foreign government.  The document prepared in 2008 is not consistent with
a conclusion that Applicant has been consistently forthright about his security significant conduct in the years following
his 2000 SCA falsification, which further undermines his efforts to demonstrate mitigation under the Egan standard.
5
For all the reasons set forth above, Department Counsel’s argument that the Judge’s decision
contains significant errors is persuasive.4  Accordingly, we conclude that the Judge’s favorable
decision is not sustainable.  The record, viewed as a whole, will not support a conclusion that
Applicant has met his burden of persuasion as to mitigation, either through application of the
mitigating conditions or the whole-person factors.  We note that Applicant was not denied a
clearance after the 2000 polygraph uncovered his improper release of proprietary information and
subsequent falsifications.  However, DOHA “is not estopped from making an adverse clearance
decision when there were prior favorable adjudications.”   ISCR Case No. 07-17383 at 2 (App. Bd.
Feb. 12, 2009). 
Order
The Judge’s favorable security clearance decision is REVERSED.  
Signed: Michael Y. Ra’anan          
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: Jeffrey D. Billett                
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: James E. Moody                
James E. Moody
Administrative Judge
Member, Appeal Board