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ISCR Case 17-01392.a1 — CASE

ISCR Case 17-01392.a1denied

Case Headnote

ISCR Case No. 17-01392.a1

Aug 23, 2019· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The applicant admitted to multiple allegations of criminal conduct and personal conduct issues, which raised disqualifying conditions under AG ¶ 15 and AG ¶ 16.

While the applicant argued for mitigation based on personal circumstances, and mitigating conditions under AG ¶ 20 were applied, these were insufficient to overcome the security concerns. The applicant was favored under Guideline F (Financial Considerations), but this did not outweigh the other issues.

Ultimately, the appeal board affirmed the denial, finding the judge's decision sustainable and consistent with national security interests. The denial was based on the admitted criminal and personal conduct.

Conditions Referenced

Disqualifying

AG ¶ 15raisedCriminal Conduct
AG ¶ 16raisedPersonal Conduct

Mitigating

AG ¶ 20rejectedMitigating CircumstancesThe applicant's arguments for mitigation were not sufficient to overturn the judge's findings.

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 issuedAug 22, 2018
Answer filed—
Hearing heldJul 16, 2019
Decision dateAug 23, 2019

Cite For

Affirmation of Denial Based on Criminal Conduct Under Guideline J
Consideration of Personal Conduct Under Guideline E
Rejection of Mitigation Arguments Based on Personal Circumstances

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 concerns under Guidelines E, F, and J. The Applicant did not challenge the Judge's findings but argued that he had mitigated the concerns. The Board affirmed the denial, finding no harmful error in the Judge's decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMatthew E. Malone — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline EGuideline FGuideline J

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant contends that he has taken necessary steps to mitigate security concerns.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argues that the Judge's weighing of the evidence was arbitrary and capricious.

Why the Board ruled this way

The Board found that the Applicant did not challenge any of the Judge's findings of fact and that his arguments did not demonstrate harmful error. The Judge's decision was supported by substantial evidence and was not arbitrary or capricious.

Standard of review applied

No de-novo re-decisionNo new evidence on appealSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural compliance

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 E; Guideline F; Guideline J DIGEST: Applicant has not challenged any of the Judge’s findings of fact. He contends that he has taken the necessary steps over the last four to five years to mitigate the alleged security concerns. He argues these incidents occurred when he was younger and less mature. He notes that he had problems with his ex-wife; that he has received counseling; and that he has obtained full custody of his children. Applicant’s arguments, in effect, advocate for an alternative weighing of the evidence. His disagreement with the Judge’s weighing of the evidence or his ability to argue for a different interpretation of the evidence is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. Adverse decision affirmed. CASENO: 17-01392.a1 DATE: 08/23/2019 DATE: August 23, 2019 ) In Re: ) ) -------------------------- ) ISCR Case No. 17-01392 ) ) Applicant for Security Clearance ) )

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 August 22, 2018, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline E (Personal Conduct), Guideline J (Criminal Conduct), and Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On July 16, 2019, after the hearing, Administrative Judge Matthew E. Malone denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Under Guideline E, the SOR alleged that Applicant was charged with criminal domestic violence on four occasions between 2012 and 2015; was charged with sexual contact with a minor in 2004; was involuntarily terminated from jobs in 2006, 2007, 2008, 2013, and 2015; submitted a false resume for employment in 2012; was evicted from at least three different residences, and made false statements in his 2015 security clearance application and during background interviews in 2016. The criminal domestic violence and sexual contact with a minor charges were cross-alleged under Guideline J. In responding to the SOR, Applicant admitted all of the SOR allegations with explanations. The Judge found against Applicant on the Guideline E and J allegations and in favor of him on the Guideline F allegations.

On appeal, Applicant has not challenged any of the Judge’s findings of fact. He contends that he has taken the necessary steps over the last four to five years to mitigate the alleged security concerns. He argues these incidents occurred when he was younger and less mature. He notes that he had problems with his ex-wife; that he has received counseling; and that he has obtained full custody of his children. Applicant’s arguments, in effect, advocate for an alternative weighing of the evidence. His disagreement with the Judge’s weighing of the evidence or his ability to argue for a different interpretation of the evidence is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15-00650 at 2 (App. Bd. Jun. 27, 2016). He also asserts that he needs his security clearance to care for his family and maintain his livelihood. The Directive, however, does not permit us to consider the impact of an unfavorable decision. See, e.g., ISCR Case No. 14-02619 at 3 (App. Bd. Apr. 7, 2016).

Applicant’s brief discusses Guideline K (Handling Protected Information). Guideline K is not at issue in this case. 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, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility 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