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ISCR Case 21-02236 — CASE

ISCR Case 21-02236denied

Case Headnote

ISCR Case No. 21-02236

Nov 8, 2023· Hon. Gregg A. Cervi· appeal

Summary

A security clearance applicant, representing himself, was denied clearance due to concerns under Guideline J (Criminal Conduct), Guideline D (Sexual Behavior), and Guideline F (Financial Considerations). The denial stemmed from serious allegations, including a conviction for contributing to the delinquency of a juvenile and inappropriate conduct involving a minor.

The board found the applicant's conduct too recent and serious to be mitigated, despite his completion of probation and lack of further incidents. Specifically, the applicant's pattern of behavior raised significant doubts about his reliability and judgment.

While mitigating conditions such as completion of probation and no further incidents were considered, the board concluded that the applicant failed to demonstrate that his conduct occurred under unusual circumstances or that it was unlikely to recur. Consequently, the appeal was denied.

Conditions Referenced

Disqualifying

AG ¶ 30raisedCriminal Conduct
AG ¶ 24raisedSexual Behavior

Mitigating

AG ¶ 20rejectedMitigating ConditionsThe applicant's completion of probation and lack of further incidents were insufficient to mitigate the serious nature of his past conduct.
AG ¶ 22rejectedMitigating ConditionsThe applicant's conduct involved a minor and was not private or discreet.

Key Rule Quoted

“The Board’s authority to review a case is limited to cases in which the appealing party has alleged the Judge committed harmful error.”
— Directive ¶ E3.1.32.

Procedural Posture

SOR issuedJan 11, 2022
Answer filed—
Hearing heldSep 5, 2023after the record closed
Decision dateNov 8, 2023

Cite For

Denial of Security Clearance Due to Serious Criminal Conduct Under Guideline J
Insufficient Mitigation of Serious Allegations Involving Minors Under Guideline D
Limitations of Appeal Review Authority Regarding Judge's Findings and Conclusions.

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 eligibility based on criminal conduct, sexual behavior, and financial considerations. The Applicant did not assert any harmful error in the appeal, leading the Board to affirm the Administrative Judge's decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowBraden M. Murphy — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline JGuideline DGuideline F

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant did not assert any harmful error in the appeal.

Why the Board ruled this way

The Board affirmed the Administrative Judge's decision as the Applicant did not allege any harmful error, and the Judge's findings were supported by substantial evidence.

Standard of review applied

No de-novo re-decisionNo new evidence on appealHarmful-error gatekeeper

Appeal Board panel

James F. Duffy — Chair
Moira Modzelewski
Gregg A. Cervi

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. 21-02236

)

) Applicant for Security Clearance ) _______________________________________) Date: November 8, 2023

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 January 11, 2022, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision―security concerns raised under Guideline J (Criminal Conduct), Guideline D (Sexual Behavior), and F (Financial Considerations) of the National Security Adjudicative Guidelines (AG) in Appendix A of Security Executive Agent Directive 4 (effective Jun. 8, 2017) and DoD Directive 5220.6 (January 2, 1992, as amended) (Directive). Department Counsel requested a hearing. On September 5, 2023, after the record closed, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Braden M. Murphy denied Applicant’s security clearance eligibility. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The SOR alleged under Guideline J that Applicant was arrested and charged in 2020 for indecent liberties with a child. He pled to contributing to the delinquency of a juvenile. He also received non-judicial punishment in 2014 while on active duty for wrongful appropriation of another person’s property. The 2020 incident was cross-alleged under Guideline D, as well as an

allegation that in 2021, his six-year-old daughter reported seeing him inappropriately touching himself while watching pornography. Finally, the SOR alleged, under Guideline F, six delinquent debts. The Judge found against Applicant on the contributing to the delinquency of a juvenile conviction under Guidelines J and D. He found the remaining SOR allegations to be mitigated. In summarizing the decision, the Judge found that although Applicant completed probation, his conduct was too recent and too serious to be considered fully mitigated under Guideline J. Further, he engaged in a pattern of conduct in which he wrongfully asserted a parental or mentor-like responsibility for vulnerable females. He did not show that his conduct occurred under such unusual circumstances or that it is unlikely to recur and does not cast doubt on his reliability, trustworthiness, or good judgment. Decision at 9. In addition, he found that the conduct was not mitigated under Guideline D for the same reasons as under Guideline J, and because it involved a 12-year-old child who was unable to give meaningful consent, and the conduct was not private or discreet. Id. at 11. Applicant’s appeal brief does not assert that the Judge committed any harmful error, nor does he dispute the Judge’s findings or conclusions. Rather, it merely argues that he took responsibility for his actions, completed probation, has not engaged in similar behavior since, and is a valued and respected employee. Appeal Brief at 1. Applicant’s argument amounts to a disagreement with the Judge’s weighing of the evidence, which is not sufficient to demonstrate that he weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. Id. The Appeal Board does not review cases de novo. The Board’s authority to review a case is limited to cases in which the appealing party has alleged the Judge committed harmful error. Directive ¶ E3.1.32. Because Applicant has not alleged such a harmful error, the decision of the Judge denying Applicant security clearance eligibility is sustainable.

ORDER

The decision is AFFIRMED. Signed: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board Signed: Gregg A. Cervi Gregg A. Cervi Administrative Judge Member, Appeal Board