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ISCR Case 19-00392.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date3/30/2020
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 19-00392) →
Participants
Judge: Michael Y. Ra'anan, James E. Moody, James F. Duffy
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline BForeign Influence · For Applicant
- Guideline CForeign Preference · For Applicant
- Guideline EPersonal Conduct · Against Applicant
- Guideline FFinancial Considerations · For Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
Finding similar decisions…

ISCR Case 19-00392.a1denied

Case Headnote

ISCR Case No. 19-00392.a1

Mar 30, 2020· Hon. Michael Y. Ra'anan· appeal

Summary

A 45-year-old male with a military background was denied a security clearance due to concerns under multiple guidelines, primarily Guideline E (Personal Conduct), but also Guideline B (Foreign Influence), Guideline C (Foreign Preference), and Guideline F (Financial Considerations). The denial was based on a pattern of domestic altercations, which raised questions about the applicant's judgment and reliability.

Specifically, the applicant's most recent domestic altercation occurred after he had asserted that such incidents would not happen again, indicating a lack of rehabilitation. At the time of the decision, the applicant was also on probation and had not completed a court-ordered domestic violence course.

Despite the applicant's claims of improved behavior, the judge found insufficient evidence to mitigate the security concerns. The denial was affirmed due to the applicant's consistent pattern of behavior and the incomplete status of his rehabilitation efforts.

Conditions Referenced

Disqualifying

AG ¶ 16raisedPersonal 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 issuedJun 10, 2019
Answer filed—
Hearing heldJan 22, 2020
Decision dateMar 30, 2020

Cite For

Affirmation of Denial Based on Domestic Violence History Under Guideline E
Insufficient Evidence of Rehabilitation in Personal Conduct Cases
Presumption of Judicial Impartiality in Security Clearance Decisions

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 concerns under multiple guidelines. The applicant argued that the Judge's decision was biased and arbitrary. The Board affirmed the Judge's decision, finding no harmful error in the Judge's conclusions or procedures.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMark Harvey — denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline CGuideline EGuideline F

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.
Judge bias or partiality — raised by the applicantRejected
Applicant asserted that the Judge was biased against him.

Why the Board ruled this way

The Board found that the Judge's conclusions were reasonable interpretations of the evidence and that the Judge complied with required procedures. The Board also found no bias in the Judge's decision-making process.

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 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 C; Guideline F; Guideline E DIGEST: Applicant asserts that the Judge “referenced a ‘promise’ made by [Applicant] that domestic disturbance situations would not occur in the future. [Applicant] never made a ‘promise’ that further domestic disturbances would not occur in the future.” Applicant called the Judge’s conclusion absurd and unrealistic. In the findings of fact, the Judge correctly quoted a pertinent comment in Applicant’s SOR Response, i.e., that he and his wife had come out of counseling stronger and closer than ever, and he “can say with the utmost confidence that the behaviors of the past will not recur.” From our review of the record, we find no reason to conclude that the Judge’s characterization of this comment as a “promise” was either an unreasonable interpretation of the evidence or, more to the point, was a conclusion that was arbitrary, capricious, or contrary to law. Adverse decision is affirmed. CASE NO: 19-00392.a1 DATE: 03/30/2020 DATE: March 30, 2020 ) In Re: ) ) ----------------------- ) ISCR Case No. 19-00392

) ) Applicant for Security Clearance ) )

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Winifred R. Eilert, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On June 10, 2019, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline B (Foreign Influence), Guideline C (Foreign Preference), Guideline E (Personal Conduct), and Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On October 17, 2019, Department Counsel amended the SOR by adding a Guideline E allegation. On January 22, 2020, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Mark Harvey 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 was biased against him and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guidelines B, C, and F have not been raised as issues on appeal and are not discussed below. Consistent with the following, we affirm. The Judge’s Pertinent Findings of Fact Applicant is 45 years old. He served in the U.S. military and received an honorable discharge. He worked as a Federal employee from 2007 to 2017. He later worked for a DoD contractor until he recently became unemployed. He has earned a dual master’s degree in two related fields and is working towards a Ph.D. He and his wife each have a child from other relationships.

In 2004, Applicant’s wife obtained a domestic violence restraining order against him. He was not convicted of any offense as a result of an altercation with her. At the hearing, he was unable or unwilling to recall the details of this altercation. In 2007, Applicant’s wife was serving in the U.S. military overseas. At that time, he and she had a physical altercation while they were living in Government housing. When questioned by investigators, he stated that his wife tried to push him out of bed with her legs while she was making belittling statements. In trying to stop her from engaging in that conduct, he got on top of her while she was lying face down and grabbed her by the face and head. She was struggling the whole time. He stated that he did not turn or twist her head. He thought that marks on her face documented in photographs were the result of him grabbing her. Knowing that she was going to call security, he unplugged the phone. The investigative report noted that they both sustained bruises during this incident. The military commander ordered him to move out of base housing until further notice. Applicant told investigators that he and his wife had two prior incidents involving the police: a pushing incident in 2004 and a verbal argument in 2006. Applicant was not convicted of any offense as a result of this incident but received marital counseling. At the hearing, he was unable or unwilling to recall details of this altercation. In responding to the SOR in July 2019, Applicant stated, “[a]fter going to counseling and working together as a team, my wife and I came out strong and closer than ever before. We have found healthy ways to handle conflict, so I can say with utmost confidence that the behaviors from the past will not recur.” Decision at 5, quoting from SOR Response at 6. In August 2019, Applicant was arrested for an altercation with his wife and charged with assault and battery. On that occasion, he became upset with his wife because he believed she was having an extramarital affair. After arguing for several hours, they engaged in mutual shoving. She tried to burn photos of his deceased father. He told a magistrate that “he pushed her by the stove, and also that he may have pulled her hair.” Decision at 6, quoting from Government Exhibit 5 at 4. The paperwork concerning the disposition of the charge is not in the record, and Applicant did not understand whether the proceeding included in a guilty plea. He was placed on probation until October 2020 and paid $450 to enable him to begin an 18-week, court-ordered domestic violence course. He may be able to have the charge dismissed. In 2019, Applicant received an excellent annual performance review. A number of his co- workers and friends indicate that he is trustworthy and diligent. He has contributed significantly to the company’s mission accomplishment. The Judge’s Pertinent Analysis Applicant has engaged in a pattern of domestic altercations that demonstrate questionable judgment, unreliability, untrustworthiness, and unwillingness to comply with rules. None of the Guideline E mitigating conditions fully apply. His most recent domestic altercation occurred after he responded to the SOR by stating future incidents of that nature would not recur. He is on probation and has not completed the rehabilitation process. The personal conduct security concerns are not mitigated.

DISCUSSION

Applicant argues that the Judge’s finding that he was unable or unwilling to recall the details of the 2004 and 2007 altercations was “unrealistic, and the implication that [Applicant] was not being cooperative and forthcoming is inflammatory and shows bias against [him].” Appeal Brief at 11. Bias is not demonstrated merely because the Judge makes an adverse ruling, finding, or credibility determination. See, e.g., ISCR Case No. 17-00661 at 5-6 (App. Bd. Sep. 7, 2018). There is a rebuttable presumption that a Judge is impartial and unbiased, and a party seeking to overcome that presumption has a heavy burden of persuasion. Id . at 3. In this case, Applicant’s arguments fail to establish the Judge was biased against him. Applicant asserts that the Judge “referenced a ‘promise’ made by [Applicant] in July 2019, that domestic disturbance situations would not occur in the future. [Applicant] never made a ‘promise’ that further domestic disturbances would not occur in the future.” Appeal Brief at 11. Applicant called the Judge’s conclusion absurd and unrealistic. In the findings of fact, the Judge correctly quoted a pertinent comment in Applicant’s SOR Response, i.e., that he and his wife had come out of counseling stronger and closer than ever, and he “can say with the utmost confidence that the behaviors of the past will not recur.” From our review of the record, we find no reason to conclude that the Judge’s characterization of this comment as a “promise” was either an unreasonable interpretation of the evidence or, more to the point, was a conclusion that was arbitrary, capricious, or contrary to law. See Directive ¶ E3.1.32.3. Applicant further contends the Judge did not consider all of the evidence, mis-weighed the evidence, and did not properly apply the mitigating conditions and whole-person concept. In his arguments, he highlights, for example, that two of the three domestic alternations occurred more than ten years ago, that neither of those two incidents resulted in him being charged or convicted of any offense, that his wife instigated the altercations in 2007 and 2019, that he has participated in counseling and rehabilitation, and that he is complying with the existing court-ordered requirements. The Judge, however, addressed most of those matters in his decision. Applicant’s arguments are neither sufficient to rebut the presumption that the Judge considered all of the evidence in the record nor 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. 17-02488 at 3-4 (App. Bd. Aug. 30, 2018). Additionally, the Judge complied with the requirements of the Directive in his whole-person analysis by considering the totality of the evidence in reaching his decision. 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