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ISCR 20-01554: Guideline D security clearance appeal, denied (2022) · CASE

ISCR Case 20-01554denied

Case headnote

ISCR Case No. 20-01554

Nov 1, 2022· Hon. James E. Moody· appeal

Summary

A former military member, employed by a DoD contractor, was denied a security clearance due to serious allegations of sexual misconduct involving a minor. The denial was based on Guideline D (Sexual Behavior), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct).

Disqualifying conditions under these guidelines were raised because the applicant's claim of not intending to commit a lewd act was deemed not credible. Furthermore, despite evidence of counseling and character references, insufficient proof of rehabilitation was established. The applicant also did not accept full responsibility for his security-significant conduct.

The appeal board found these factors demonstrated a lack of trustworthiness. The decision emphasized the necessity of clear evidence of trustworthiness in relation to national security, leading to the denial of the applicant's security clearance.

Conditions referenced

Disqualifying

AG DraisedSexual Behavior
AG EraisedPersonal Conduct
AG JraisedCriminal 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 issuedDec 30, 2020
Answer filed—
Hearing heldAug 22, 2022
Decision dateNov 1, 2022

Cite for

Insufficient Proof of Rehabilitation Under Guideline D
Credibility Issues Regarding Intent Under Guideline E
Importance of National Security in Clearance Decisions Under Guideline J

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 was filed by the applicant after the Administrative Judge denied his request for a security clearance based on security concerns under multiple guidelines. The applicant argued that he had demonstrated rehabilitation and that the Judge's findings were arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMark Harvey denied the clearance

Decided ona hearing

Guidelines belowGuideline DGuideline EGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant contends that there is sufficient evidence to demonstrate rehabilitation.

Why the Board ruled this way

The Board found that the Judge examined the relevant evidence and articulated a satisfactory explanation for the decision, which is sustainable on this record.

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
Jennifer I. Goldstein

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. 20-01554

)

) Applicant for Security Clearance ) _______________________________________) Date: November 1, 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 December 30, 2020, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision⸺security concerns raised under Guideline D (Sexual Behavior), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On August 22, 2022, 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. The Judge’s favorable findings under Guideline E are not at issue in this appeal. Applicant has been employed by a DoD contractor since early 2019. He served in the U.S. military from 2000 until 2018, receiving a General Discharge under Honorable Conditions. While on active duty he deployed in support of U.S. objectives in the Middle East.

In 2016, Applicant was depressed after returning from an overseas assignment and was experiencing marital difficulties. He surfed the internet looking for dating opportunities. Applicant began exchanging emails with a person (Ms. C) who eventually advised that she was 14 years old. Though believing Ms. C to be underage and aware that sexual communications with a minor is illegal, he sent her photos of his genitals, offered to teach her how to perform various sexual acts, and provided information to her about access to websites containing pornographic videos. However, he denied fantasizing about sexual relations with minors. Applicant asked Ms. C to meet with him where they could be alone, although he insisted that he did not intend to have sex with her.1 Applicant’s interactions with Ms. C were discovered, and he admitted his misconduct to an investigator. Applicant received non-judicial punishment under the Uniform Code of Military Justice and was subsequently discharged for cause from the military, as stated above. These matters constitute the operative facts underlying each of the Guidelines in the SOR. Applicant has disclosed his misconduct to his spouse, in-laws, and employer. He has received counseling from a therapist experienced in treating pedophiles, who advised that Applicant does not meet the criteria for pedophilia, although she did not provide a formal diagnosis. He has also received counseling from depression, anxiety, and ADHD through the VA. Applicant has expressed contrition for his misconduct and has become more active in his church. He provided evidence from numerous character witnesses, who attested to his honesty, professionalism, trustworthiness, and reliability. His references support his effort to obtain a clearance. Though noting that Applicant’s misconduct is not recent, that he has received counseling, and that he has an excellent employment record, the Judge found that Applicant’s claim that he did not intend to commit a “lewd act” upon Ms. C was not credible and that there is insufficient proof of rehabilitation. The Judge concluded that Applicant had not accepted full responsibility for his security-significant conduct. Applicant contends that there is sufficient evidence to demonstrate rehabilitation. He argues that the record shows that there have been no repeat offenses; that he has admitted his misconduct to investigators, employers, and family; that he is careful to follow all protocols in the handling of classified information; and that he has presented evidence that he can be trusted. Applicant’s arguments are not enough to rebut the presumption that the Judge considered all of the evidence in the record or 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. 18-02872 at 3 (App. Bd. Jan. 15, 2020). Applicant requests “an interim clearance” and would willingly submit to interviews, release of records, or other procedures that would enable him to retain access to classified information. Applicant’s arguments and the record evidence do not support application of any of the possible waivers to policy set forth in Directive, Encl. 2, App. C. See, e.g., ISCR Case No. 19 01084 at 2 (App. Bd. Aug. 26, 2020). 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 1 “I wasn’t going to do anything like that . . . I couldn’t do that. That’s sick, twisted, and I don’t even know why I went as far as I did. But to actually go and meet somebody and do something like that, no, I can’t do that.” Decision at 4, quoting Tr. at 62-63.

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: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: Jennifer I. Goldstein Jennifer I. Goldstein Administrative Judge Member, Appeal Board