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ISCR Case ISCR Case No. 21-01766 — CASE

ISCR Case ISCR Case No. 21-01766denied

Case Headnote

ISCR Case No. ISCR Case No. 21-01766

Oct 27, 2022· Hon. Moira D. Modzelewski· appeal

Summary

A single male applicant was denied a security clearance under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct) due to a history of significant criminal conduct. This included multiple DUI charges and possession of cocaine. Although nine years had passed since his last arrest, the applicant failed to provide adequate explanations or evidence of rehabilitation for his extensive criminal history.

The denial was based on the applicant's admission to multiple criminal offenses without offering explanations or proof of rehabilitation. Furthermore, his failure to disclose the full extent of his criminal history was determined to be deliberate and uncorrected.

The appeal board affirmed the denial, citing national security considerations as paramount. The decision highlighted the presence of disqualifying conditions AG ¶ 30 and AG ¶ 16, reinforcing the importance of a complete and truthful disclosure, along with demonstrated rehabilitation, for security clearance eligibility.

Conditions Referenced

Disqualifying

AG ¶ 30raisedCriminal Conduct
AG ¶ 16raisedPersonal 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 issuedAug 10, 2021
Answer filednull
Hearing heldAug 30, 2022decision on the written record
Decision dateOct 27, 2022

Cite For

Failure to Provide Evidence of Rehabilitation Under Guideline J
Deliberate Omission of Criminal History Under Guideline E
National Security Considerations in Clearance Decisions

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 an applicant who was denied a security clearance due to concerns under Guideline J (Criminal Conduct) and Guideline E (Personal Conduct). The applicant argued that the judge erred in finding he had no children and that the decision was arbitrary and capricious. The Board affirmed the judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowArthur E. Marshall, Jr. — denied the clearance

Decided onthe written record

Guidelines belowGuideline EGuideline J

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant alleged that the judge erred in finding he had no children.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the judge's decision was arbitrary and capricious.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge's material findings were based on substantial evidence and that the decision was sustainable on the record. The Board concluded that Applicant did not raise any harmful error that warranted a reversal of the Judge's decision.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

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. 21-01766

)

) Applicant for Security Clearance ) _______________________________________) Date: October 27, 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 August 10, 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 Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On August 30, 2022, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Arthur E. Marshall, Jr., denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The Judge’s Findings and Analysis Applicant has worked for his present employer since 2020. This is his first effort to obtain a security clearance. He is single and has no children. Applicant completed a security clearance application (SCA) in late 2020 in which he disclosed two charges of DUI and an arrest for possession of cocaine. The record shows, however, that Applicant was arrested for 32 other

offenses, including multiple felony counts, firearms violations, drug and alcohol related offenses, contempt of court, shoplifting, assault and battery, etc. His last known arrest occurred in 2013. Applicant provided no information or explanation regarding the allegations of criminal conduct or the Guideline E allegation that he deliberately omitted the bulk of his criminal offenses. The File of Relevant Information (FORM) “includes no documentation revealing favorable information about Applicant’s life; his method, if any, for curtailing criminal and civil misbehavior . . . ; or why his SCA disclosures were deficient.” Decision at 2. In the Analysis, the Judge cited to the nine years that had elapsed since Applicant’s last alleged incident of criminal conduct. Nevertheless, he concluded that Applicant’s failure to provide any information as to why he apparently stopped a 33-year pattern of misconduct precluded a finding that he is rehabilitated. Concerning the Guideline E allegation of deliberate failure to have disclosed the full extent of his criminal conduct, the Judge noted that Applicant had admitted all of the SOR allegations without explanation, that he presented no evidence of attempting to correct his omissions, or that he had taken steps to avoid such conduct in the future. Accordingly, the Judge concluded that Applicant had failed to meet his burden of persuasion regarding mitigation.

DISCUSSION

Much of Applicant’s brief consists of matters from outside the record, which we cannot consider. Directive ⁋ E3.1.29. Applicant contends that the reason he omitted many of his offenses was that the charges were dismissed. See, e.g., Item 4, FBI Record. This argument on its face does not undermine the Judge’s finding of deliberate omission. The SCA provides, at Section 18, that a criminal offense must be disclosed “regardless of whether . . . the charge was dismissed” (Item 3 at 24), and there is no record evidence to the effect that Applicant was unaware of that requirement. Moreover, as the Judge found, Applicant admitted all of the allegations, including the one for deliberate omission, without explanation. Item 2, Answer to SOR. Applicant argues that the Judge erred by finding that he has no children. While he disclosed no children in his SCA, a court record reflects he had child support liens entered against him, but this error in the findings was harmless. Item 3 at 18-20 and Item 5 at 42-43. The Judge’s material findings are based upon substantial evidence. See, e.g. ISCR Case No. 18-02581 at 3 (App. Bd. Jan. 14, 2020). Applicant has not raised any issue of harmful error that is cognizable by the Appeal Board. 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 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: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board