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ISCR Case 20-00828 — CASE

ISCR Case 20-00828denied

Case Headnote

ISCR Case No. 20-00828

Dec 7, 2021· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied clearance under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The denial was primarily based on multiple criminal charges, including domestic violence and alcohol-related offenses, which raised disqualifying conditions J1, J2, J3, and J4.

The applicant contested inaccuracies in the File of Relevant Material, but the appeal board found no harmful error in the judge's decision regarding the applicant's criminal history. The board concluded that the applicant's arguments did not sufficiently rebut the presumption that the judge considered all evidence presented.

Ultimately, the appeal board upheld the denial, emphasizing that any doubt concerning security clearance eligibility must favor national security.

Conditions Referenced

Disqualifying

J1raisedCriminal Conduct
J2raisedCriminal Conduct
J3raisedCriminal Conduct
J4raisedCriminal Conduct

Key Rule Quoted

“Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of national security.”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedMay 7, 2021
Answer filed—
Hearing held—Applicant requested a decision on the written record.
Decision dateDec 7, 2021Appeal decision affirmed the denial.

Cite For

Affirmation of Denial Based on Multiple Criminal Charges Under Guideline J
Harmless Error Standard Regarding Inaccuracies in the File of Relevant Material
Emphasis on National Security in Clearance Eligibility 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 criminal conduct and alcohol consumption. The applicant argued that inaccuracies in the File of Relevant Material affected the Judge's decision. The Board affirmed the denial, finding no harmful error in the Judge's ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRichard A. Cefola — denied the clearance

Decided onthe written record

Guidelines belowGuideline JGuideline G

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge's decision was arbitrary and capricious due to inaccuracies in the File of Relevant Material.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the applicant did not demonstrate any harmful error that would warrant overturning the decision. The Judge's findings were not arbitrary or capricious, and the decision was consistent with national security considerations.

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
Jennifer I. Goldstein
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

_______________________________________________ ) In the matter of: ) ) ) ---------------------- ) ISCR Case No. 20-00828 ) ) Applicant for Security Clearance ) _______________________________________) DEPARTMENT OF DEFENSE DEFENSE LEGAL SERVICES AGENCY DEFENSE OFFICE OF HEARINGS AND APPEALS APPEAL BOARD POST OFFICE BOX 3656 ARLINGTON, VIRGINIA 22203 (703) 696-4759 KEYWORD: Guideline J; D DIGEST: Applicant in essence contends that Department Counsel’s File of Relevant Material (FORM) contains inaccurate facts concerning how he received his clearance and the number of his children. However, an error in a FORM, as opposed to one in a Judge’s decision, is not an appealable issue. Applicant appears to contend that, due to inaccuracies and omissions in the FORM, the Judge was not aware of important facts in his case. His brief contains court records that reflect various criminal charges were expunged from his record. Those court records are in the FORM and were addressed in the Judge’s decision. None of Applicant’s arguments are either sufficient to rebut the presumption that the Judge considered all the evidence in the record or enough to demonstrate the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Adverse Decision is Affirmed. CASE No: 20-00828.a1 DATE: 12/07/2021 Date: December 7, 2021

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 May 7, 2021, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline J (Criminal Conduct) and Guideline G (Alcohol Consumption) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. In the File of Relevant Material (FORM), Department Counsel withdrew the Guideline G allegation and added other Guideline J allegations. On October 18, 2021, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Richard A. Cefola denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Under Guideline J, the SOR alleged that Applicant was charged with various criminal offenses on 11 occasions between 2011 and 2018. These charges included domestic violence, second degree assault, attempting to drive a vehicle while impaired by alcohol, credit card fraud, petit larceny, disorderly conduct, violation of protective order, harassment, and electronic mail harassment. Applicant was found guilty of attempting to drive a vehicle while impaired by alcohol in 2014 and petit larceny in 2015. In general, the other charges were either dismissed, not prosecuted, or expunged from his record. The Judge found against Applicant on all of the allegations. In his appeal brief, Applicant in essence contends that Department Counsel’s File of Relevant Material (FORM) contains inaccurate facts concerning how he received his clearance and the number of his children. However, an error in a FORM, as opposed to one in a Judge’s decision, is not an appealable issue. See, e.g., ISCR Case No. 15-00535 at 2 (App. Bd. Mar. 13, 2017). In this regard, we note the Judge erred in finding that Applicant had “no children.” Decision at 3. Applicant did not disclose that he had children in his security clearance application but did so during his background interview. FORM Items 2 at 20-22 and 3 at 5. The Judge’s error, however, was harmless. See, e.g., ISCR Case No. 19-01220 at 3 (App. Bd. Jun. 1, 2020) (an error is harmless if it did not likely affect the outcome of the case). As best we can discern, Applicant appears to contend that, due to inaccuracies and omissions in the FORM, the Judge was not aware of important facts in his case. His brief contains court records that reflect various criminal charges were expunged from his record. Those court records are in the FORM and were addressed in the Judge’s decision. None of Applicant’s arguments are either sufficient to rebut the presumption that the Judge considered all the evidence in the record or enough to demonstrate the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 19-01400 at 2 (App. Bd. Jun. 3, 2020). Applicant also notes that an adverse decision will have a negative impact on his family, but such a circumstance is not a relevant consideration in assessing an individual’s security clearance eligibility. See, e.g., ISCR Case No. 17-03024 at 3 (App. Bd. Jan. 9, 2020). Applicant has failed to establish that the Judge committed any harmful error. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on the record. “The general standard is that a clearance may be granted only when ‘clearly consistent with 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 national security.”

ORDER

The decision is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jennifer I. Goldstein Jennifer I. Goldstein Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board