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ISCR 20-01577: Guideline E security clearance appeal, denied (2022) · CASE

ISCR Case 20-01577denied

Case headnote

ISCR Case No. 20-01577

Jun 6, 2022· Hon. Moira D. Modzelewski· appeal

Summary

A security clearance applicant, representing himself, was denied clearance under Guideline J (Criminal Conduct) and Guideline E (Personal Conduct). The denial stemmed from a court-martial conviction for the illegal possession and importation of munitions.

The judge found the applicant's explanation for possessing the munitions—that they were for military training—unconvincing and lacking credibility. This led to the conclusion that the applicant had not mitigated the security concerns raised by the serious criminal conduct.

Disqualifying conditions J1 and J2 were raised, while mitigating conditions J3 and E2 were considered but ultimately not applied effectively. The appeal affirmed the denial, upholding the judge's original credibility determinations and finding that the applicant failed to demonstrate successful rehabilitation or otherwise mitigate the security concerns.

Conditions referenced

Disqualifying

J1raisedCriminal Conduct
J2appliedCriminal Conduct

Mitigating

J3rejectedMitigating CircumstancesThe judge found the applicant's claims of rehabilitation and the passage of time unpersuasive.
E2appliedPersonal 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 issuedNov 20, 2020
Answer filed—
Hearing heldFeb 23, 2022
Decision dateJun 6, 2022Appeal affirmed.

Cite for

Credibility Determinations in Security Clearance Cases
Impact of Criminal Conduct on Security Clearance Eligibility
Mitigation of Security Concerns 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 involved a denial of security clearance based on criminal conduct and personal conduct. The applicant argued that the Judge erred in analyzing the evidence and misapplied mitigating conditions. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMark Harvey denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline EGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant contends the Judge erred in his analysis of the evidence.
Mitigation wrongly applied / not applied, raised by the applicantRejected
Applicant argues the Judge misapplied the Guideline J mitigating conditions.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant claims the Judge's conclusions were arbitrary and capricious.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision and affirmed the denial of the security clearance. The Judge's credibility determinations and analysis of the evidence were deemed appropriate and supported by substantial evidence.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference 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. 20-01577

)

) 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 Date: June 6, 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 November 20, 2020, 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 Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 23, 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. On appeal, Applicant contends the Judge erred in his analysis of the evidence. For reasons stated below, the Judge’s decision is affirmed. The Judge found in favor of Applicant on the sole Guideline E allegation. This favorable finding was not raised as an issue on appeal. The Judge found against Applicant on the two Guideline J allegations. The Judge summarized the case as follows:

[About six years ago], Applicant was convicted at a special court-martial empowered to adjudge a bad-conduct discharge (BCD-SPCM) of three crimes involving illegal possession and importation of an automatic rifle, ammunition, and explosives from [a Middle East country] to the United States, and he was sentenced to 12 months of confinement and reduction [of rank]. He was charged with committing larceny of U.S. military munitions in [the Middle East country]; however, that charge was dismissed. He wrongfully appropriated basic allowance for housing (BAH) at the with dependent rate; however, he did not receive disciplinary action for this offense. Guideline J (criminal conduct) security concerns are not mitigated . . . . Eligibility for access to classified information is denied. [Decision at 1.] At the court-martial, Applicant pled guilty to various charges pursuant to a pretrial agreement. Although he pled not guilty to a larceny charge at the court-martial, the evidence at his security clearance hearing led the Judge to conclude he stole U.S. munitions. Decision at 11. Of note, Applicant arranged for foreign and U.S. munitions to be transported to a U.S. military base and then to his home. While Applicant was away on leave, his home was burglarized, the door was left open, and a neighbor called the police who discovered the munitions in his residence. The Judge noted that Applicant claimed he intended to use the munitions as aids in a military K-9 training program on base, but failed to explain how he could use it in that manner without incriminating himself. Decision at 17. On appeal, Applicant contends the Judge erred because he did not have “the full picture and detailed information[.]” Appeal Brief at 1. He argues, for example, that the foreign and U.S. munitions he acquired did not shortchange U.S. units rotating into theater; that the U.S. munitions eventually would have been either destroyed or left behind in the country, possibly falling into the hands of terrorists; that the U.S. munitions were unaccounted for (i.e., “off the property books” (Id.)) and, given this status, questions how they could be considered stolen property; that the Judge erred in concluding his surreptitious shipment of the munitions on military aircraft or its storage at his residence put military personnel and his neighbors at risk of death or serious injury; that he was never referred to court-martial for the BAH overpayments; and that the Judge erred in concluding he wrongfully appropriated those overpayments. Applicant further contends the Judge misapplied the Guideline J mitigating conditions, highlighting that the conduct at issue occurred over eight years ago as well as his performance of dangerous, combat duties and his successful rehabilitation. These arguments are unpersuasive. None of them are enough to rebut the presumption that the Judge considered all of the evidence in the record or sufficient to establish that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15-04856 at 2-3 (App. Bd. Mar. 9, 2017). In the decision, the Judge concluded: [Applicant’s] story about his plan to use the stolen property for training is not plausible. Credibility is essential for a security clearance holder. The DOD must be able to rely on the security clearance holder to report his own security violation or the security violation of a colleague, even when disclosure might damage someone’s career. I have lingering doubts that Applicant would report a security

violation if he deemed the violation was done in good faith to complete the mission. [Decision at 17.] The Directive requires the Appeal Board to give deference to a Judge’s credibility determinations. Directive ¶ E3.1.32.1. In essence, the Judge concluded that Applicant’s testimony about using the munitions as training aids was not believable. Tr. at 38-42. The Judge could consider that determination in assessing whether Applicant successfully rehabilitated himself and in evaluating whether he mitigated the Guideline J security concerns. See, e.g., ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006) (listing the purposes for which non-alleged conduct can be considered). Based on our review of the record, we find no reason to disturb the Judge’s adverse conclusions. 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: 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