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ISCR Case 19-02322 — CASE

ISCR Case 19-02322denied

Case Headnote

ISCR Case No. 19-02322

Jul 20, 2022· Hon. Moira D. Modzelewski· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The denial stemmed from multiple criminal convictions, including reckless driving, petit larceny, and driving while intoxicated (DWI).

Further disqualifying conditions included the applicant being banned from a military human resources office for falsifying information, and termination from a job for similar reasons. The applicant's appeal, which alleged unfairness and bias, was denied due to a lack of substantiating evidence.

The decision emphasized that national security considerations take precedence over personal circumstances. The applicant failed to provide sufficient evidence to mitigate the security concerns raised by his criminal history and conduct issues, leading to the denial of his security clearance.

Conditions Referenced

Disqualifying

J1raisedCriminal Conduct
E2raisedPersonal 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 issuedJul 20, 2021
Answer filed—
Hearing heldMay 12, 2022
Decision dateJul 20, 2022

Cite For

Affirmation of Denial Based on Multiple Criminal Convictions Under Guideline J
Emphasis on National Security Considerations Over Personal Circumstances
Insufficient Evidence to Mitigate Security Concerns in Criminal Conduct Cases

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 security clearance for the applicant based on criminal conduct and personal conduct. The applicant argued that the decision was unfair and biased, and challenged specific findings of the Administrative Judge. The Board affirmed the decision, finding no harmful error in the Judge's conclusions.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowLeRoy F. Foreman — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant claims the denial of his security clearance was unfair and biased.
Erroneous finding of fact — raised by the applicantRejected
Applicant contends the Judge erred in finding he did not take any alcohol classes.
Erroneous finding of fact — raised by the applicantRejected
Applicant challenges the Judge’s finding regarding his sentence for the petit larceny offense.

Why the Board ruled this way

The Board found no harmful error in the Administrative Judge's decision and affirmed the denial of the security clearance based on substantial evidence and proper application of the law.

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

James F. Duffy — Chair
James E. Moody
Moira Modzelewski

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

APPEARANCES

_______________________________________ ) In the matter of: )

)

----- )

ISCR Case No. 19-02322

)

) Applicant for Security Clearance ) _______________________________________) Date: July 20, 2022

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 July 20, 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 E (Personal Conduct) of DoD Directive 5220.6 (January 2, 1992, as amended) (Directive). Applicant requested a hearing. On May 12, 2022, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge LeRoy F. Foreman denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. For reasons stated below, we affirm the decision. Under Guideline J, the SOR alleged that Applicant was convicted of reckless driving in about 2012; that he was convicted of petit larceny in about 2015 and placed on probation for two years; that he was convicted of DWI in about 2016 and placed on probation for two years; that he was convicted of a probation violation in about 2017 and sentenced to five months and 25 days; and that he was charged with felony identity theft and two counts of felony public records forgery in about 2016, convicted of felony obtaining money by false pretenses, and placed on probation for two years. The Judge found against Applicant on each of the Guideline J allegations.

Under Guideline E, the SOR cross-alleged the Guideline J allegations and also alleged that Applicant was banned from a military human resources office in about 2017 upon discovery his vehicle was improperly registered and he falsified information on Federal documents, and that he was terminated from his job in about 2020 for falsifying records, misrepresenting facts, and withholding information to obtain employment. The Judge found against Applicant on each of the Guideline E allegations. Applicant claims the denial of his security clearance was unfair and biased. He argues that he has never given away Government information to anyone or another country. Although an absence of prior security violations is a matter that a Judge should consider, along with all the other evidence in the record, it does not preclude a Judge from concluding that an applicant’s circumstances present security concerns that the applicant failed to mitigate. The Government does not have to wait until an applicant has compromised or mishandled classified information before it can deny the applicant a clearance. Even those with good security records can encounter circumstances in which their judgment and reliability might be compromised. See, e.g., ISCR Case No. 16-01131 at 2-3 (App. Bd. Apr. 19, 2018). Applicant’s arguments fail to establish the proceeding was conducted in an unfair manner, and they fail to rebut the presumption the Judge was impartial and unbiased. See, e.g., ISCR Case No. 18-02722 at 5 (App. Bd. Jan. 30, 2020). Applicant contends the Judge erred in finding or concluding he “did not take any [alcohol] classes,” “did not do community service,” and “did not learn from [his] actions[.]” Appeal Brief at 1. Applicant points to no specific record evidence in support of these arguments. He also challenges the Judge’s finding that he “was sentenced to 90 days in jail, with 88 days suspended” for the petit larceny offense. Decision at 2. The Judge’s latter finding comports with the sentence reflected in Government Exhibit 4, a circuit court criminal record. None of Applicant’s challenges establish any harmful error. Directive ¶ E3.1.32. The balance of Applicant’s arguments amounts to a disagreement with the Judge’s weighing of the evidence, but those arguments fail to show the Judge weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 19-02020 at 2 (App. Bd. Oct. 26, 2020). Applicant’s brief also mentions an unfavorable decision will have an adverse impact on him and his family. The Directive, however, does not permit us to consider such consequences. Id. 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: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board