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ISCR 03-20320.a1: Guideline D security clearance appeal, denied (2007) · CASE

ISCR Case 03-20320.a1denied

Case headnote

ISCR Case No. 03-20320.a1

Dec 12, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

An information manager and former Marine Corps member was denied a security clearance under Guideline D (Sexual Behavior) and Guideline J (Criminal Conduct). The denial stemmed from the applicant's conviction for sexually abusing his stepdaughter, which raised significant security concerns.

The applicant presented evidence of rehabilitation and a low risk of reoffending. However, the judges determined that this was insufficient to overcome the gravity of the criminal conduct.

Ultimately, the applicant did not meet the burden of proving that granting a security clearance would be consistent with national security interests, leading to the denial.

Conditions referenced

Disqualifying

AG ¶ 30raisedCriminal Conduct
AG ¶ 24raisedSexual Behavior

Key rule quoted

“Once there has been a concern articulated regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance.”
Dorfmont v. Brown, 913 F.2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)

Procedural posture

SOR issuedSep 26, 2005
Answer filed—
Hearing heldJul 30, 2007
Decision dateDec 12, 2007

Cite for

Security Clearance Denial Due to Criminal Conduct Under Guideline J
Security Clearance Denial Due to Sexual Behavior Under Guideline D
Burden of Persuasion on the Applicant Regarding 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 a denial of a security clearance based on the Applicant's conviction for abuse of his stepdaughter. The Applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error and that the Applicant did not meet the burden of persuasion for clearance.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJohn Grattan Metz, Jr. denied the clearance

Decided ona hearing

Guidelines belowGuideline JGuideline D

What the Board reviewed

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

Why the Board ruled this way

The Board found no error in the Judge's sustainable findings regarding the Applicant's conviction for abuse, affirming that the Applicant did not meet the burden of persuasion for a security clearance.

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

Michael Y. Ra’anan (Chair)
William S. Fields
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 J; Guideline D DIGEST: Given the Judge’s sustainable finding regarding Applicant’s conviction for abuse of his step daughter, Applicant has not met his burden of persuasion that it is clearly consistent the interests of national security to grant him a security clearance. Adverse decision affirmed. CASENO: 03-20320.a1 DATE: 12/12/2007 DATE: December 12, 2007 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 03-20320

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Stephanie C. Hess, Esq., Department Counsel FOR APPLICANT Sheldon I. Cohen, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On September 26, 2005, DOHA issued a statement of reasons advising Applicant of the basis for that decision–security concerns raised under Guideline J (Criminal Conduct) and Guideline D (Sexual Behavior) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On July 30, 2007, after the hearing, Administrative Judge John Grattan Metz, Jr. denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent and sustainable findings of fact: Applicant is an information manager employed by a defense contractor. He has previously held a security clearance while serving in the Marine Corps from 1978 to 2001. On May 21, 2001, Applicant’s adopted stepdaughter confided to her grandmother that Applicant had abused the stepdaughter from the time she was 13 until the age of 16. The grandmother passed this information on to Applicant’s wife who then reported it to the Child Protective Services. Applicant retired from the Marine Corps on July 1, 2001, and was arrested by local authorities the next day. On November 19, 2002, he was indicted on charges arising from his abuse of his adopted daughter. Entering a plea of guilty, he was sentenced on February 15, 2002, to five years confinement, with all but six months suspended, and payment of costs. He served the confinement in a work-release status. He was required to participate in alcohol counseling, mental health counseling, sex offender counseling (including registering on the state police sex offender registry) and to serve three years of supervised probation upon his release from confinement. A court-appointed clinical psychologist diagnosed Applicant as a pedophile. Though placing him in a low risk category for recidivism, she recommended he attend group sex offenders treatment, substance abuse treatment (alcohol) and family counseling. He complied with these recommendations. Applicant called two psychologists to testify at the hearing. They gave similar testimony, to the effect that Applicant’s offense was situational, in that it was affected by financial and work related stress, alcohol abuse, and lack of communication with his wife. Due to improved circumstances, both gave Applicant a favorable prognosis and stated that he was a low risk for reoffense. One expert testified, however, that between five and ten years after the offense the chance of reoffense rose from 7.6 % to 11.2 %. Applicant’s wife and the victim testified favorably on his behalf, though both apparently were cognizant that the family has paid an economic price for his crime, since Applicant is the sole financial support. Applicant testified that he did not advise the Marine Corps of the case, nor did he advise his civilian employer until his guilty plea in November 2001. The Judge noted that Applicant was not totally consistent in his various statements as to the number of times he abused his daughter. Once there has been a concern articulated 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 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). At th that point, the burden shifts to the applicant to establish any appropriate mitigating conditions. See Directive ¶ E3.1.15. We have examined the decision in light of the record as a whole. Given his sustainable findings, the Judge’s conclusion that Applicant had not met his burden of persuasion that it is “clearly consistent with the interests of national security” for him to have a clearance is sustainable. Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). We conclude that the Judge’s decision is neither arbitrary, capricious, nor contrary to law.

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board