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ISCR 20-03647: Guideline D security clearance appeal, denied (2021) · CASE

ISCR Case 20-03647denied

Case headnote

ISCR Case No. 20-03647

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

Summary

An applicant, representing himself, was denied a security clearance under Guideline D (Sexual Behavior) and Guideline J (Criminal Conduct). The denial stemmed from a felony conviction for attempted sexual assault and the applicant's current probation status.

The appeal board upheld the denial, citing the applicant's ongoing probation as a significant security concern. Disqualifying conditions under Adjudicative Guidelines Paragraphs 31(c) and 30 were raised.

Despite the applicant's successful work history and arguments regarding the relevance of his probation and a prior interim clearance, these were deemed insufficient to overturn the denial. The board emphasized that the felony conviction and active probation presented an unacceptable security risk.

Conditions referenced

Disqualifying

AG ¶ 31(c)raisedCurrent Probation or Parole
AG ¶ 30raisedCriminal Conduct

Key rule quoted

“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)

Procedural posture

SOR issuedApr 5, 2021
Answer filed—
Hearing heldOct 5, 2021
Decision dateDec 7, 2021

Cite for

Security Concerns Related to Felony Convictions Under Guideline J
Impact of Probation Status on Security Clearance Eligibility
Rebuttable Presumption of Evidence Consideration by Administrative Judges

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 sexual behavior. The applicant did not challenge the specific findings of fact but argued that being on probation was irrelevant and that the judge did not adequately consider all evidence. The Board affirmed the denial, finding no harmful error in the judge's decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRichard A. Cefola denied the clearance

Decided ona hearing

Guidelines belowGuideline JGuideline D

What the Board reviewed

No specific harmful error alleged, raised by the applicantRejected
Applicant did not allege any specific harmful error.

Why the Board ruled this way

The Board found no harmful error in the Administrative Judge's decision, which was supported by substantial evidence and articulated a satisfactory explanation for the denial of the 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 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. 20-03647

)

) 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; Guideline D DIGEST: A decision to grant a security clearance to an applicant, however, does not give the applicant any vested right or entitlement in keeping a security clearance. A prior grant of a security clearance does not preclude the Federal Government from considering, at a future date, whether to continue that grant or to revoke it. To put it differently, the Federal Government is not equitably estopped from denying or revoking a security clearance. Adverse Decision is Affirmed. CASE No: 20-03647.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 April 5, 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 D (Sexual Behavior) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On October 5, 2021, after the hearing, 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 arrested and charged with Electronic Enticement of a Minor in 2017. He was convicted of felony attempted sexual assault, sentenced to confinement for 18 months, placed on probation until mid-2023, and required to register as a sex offender. This allegation was cross-alleged under Guideline D. At the hearing, Applicant admitted the material facts alleged in the Guideline J allegation. Tr. at 20-22. “Applicant solicited a sexual liaison with an alleged minor, who was actually someone in law enforcement.” Decision at 2. He served 18 months of confinement before being placed on probation. Id. “Although [Applicant] provided evidence of a successful work history with his employer . . . , that evidence does not outweigh the fact that he is now on probation.” Id. at 4. The Judge found against Applicant under both guidelines. In his brief, Applicant does not challenge any of the Judge’s specific findings of fact. He argues that “[b]eing on probation until July 2023 is irrelevant to the amount of time that has passed and is not a disqualifying condition.” Appeal Brief at 3. This argument lacks merit. Disqualifying Condition 31(c) lists “individual is currently on parole or probation” as a condition that could raise a security concern and may be disqualifying. Directive, Encl. 2, App. A ¶ 31(c). Applicant also argues that facts were presented during his hearing but were not given adequate consideration. These include, for example, that he was initially granted an interim security clearance after disclosing the alleged criminal conduct in a security clearance application. Appeal Brief at 2. A decision to grant a security clearance to an applicant, however, does not give the applicant any vested right or entitlement in keeping a security clearance. A prior grant of a security clearance does not preclude the Federal Government from considering, at a future date, whether to continue that grant or to revoke it. To put it differently, the Federal Government is not equitably estopped from denying or revoking a security clearance. See, e.g., ISCR Case No. 99 0519 at 15 (App. Bd. Feb. 23, 2001). To the extent that Applicant may be arguing the Judge did not consider all the evidence, that argument is not persuasive. There is a rebuttable presumption that the Administrative Judge considered all of the record evidence, and the appealing party has a heavy burden when trying to rebut that presumption. See, e.g., ISCR Case No. 18-00110 at 5 (App. Bd. Mar. 31, 2020). None of Applicant’s arguments are sufficient to rebut that presumption. The balance of Applicant’s arguments amounts to a disagreement with the Judge’s weighing of the evidence. He argues, for example, that his conduct at issue occurred over four years ago, that it was an isolated incident that occurred under unusual circumstances, that his conduct was the result of inattention to detail and he was not seeking to engage in illegal activity, and that he is successfully participating in a treatment program. Appeal Brief at 2-5. He also argues the Judge did not properly apply the whole-person concept. None of his arguments are sufficient to demonstrate the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15-08684 at 2 (App. Bd. Nov. 22, 2017).

Applicant 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