ISCR Case No. 19-02322

_______________________________________ ) In the matter of: )

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ISCR Case No. 19-02322

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

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.”

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