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ISCR USA-C Case No. 22-02418-R: Guideline J security clearance appeal, denied (2023) · CASE

ISCR Case USA-C Case No. 22-02418-Rdenied

Case headnote

ISCR Case No. USA-C Case No. 22-02418-R

Apr 19, 2023· Hon. Moira D. Modzelewski· appeal

Summary

A security clearance was denied under Guideline J (Criminal Conduct) due to the applicant's involvement in serious criminal activity, specifically child abuse. The applicant, representing himself, faced a reinstated felony charge of child abuse after his initial plea agreement was set aside.

The judge found substantial evidence of the applicant's actions, which raised significant security concerns and cast doubt on his good judgment and trustworthiness. The appeal did not demonstrate any harmful error by the judge, leading to the decision being upheld.

The denial was based on Disqualifying Condition J.1, directly related to the applicant's criminal conduct involving child abuse and the ongoing legal issues surrounding the reinstated felony charge.

Conditions referenced

Disqualifying

J.1raisedCriminal Conduct

Key rule quoted

“The Appeal Board does not review cases de novo.”

Procedural posture

SOR issuedNov 2, 2020
Answer filed—
Hearing heldMar 2, 2023
Decision dateApr 19, 2023

Cite for

Serious Criminal Conduct Under Guideline J
Impact of Plea Agreements on Security Clearance Eligibility
Limitations on Appeal Review Regarding Harmful Error Claims

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. The Applicant's appeal did not assert any harmful error by the Administrative Judge. The Board affirmed the denial of the security clearance.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCarol G. Ricciardello denied the clearance

Decided ona hearing

Guidelines belowGuideline J

What the Board reviewed

No specific harmful error alleged, raised by the applicantRejected
Applicant did not assert that the Judge committed any harmful error.

Why the Board ruled this way

The Board affirmed the Administrative Judge's decision because the Applicant did not allege any harmful error, and the decision was 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
Allison Marie

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: )

)

----- )

USA-C Case No. 22-02418-R

)

) 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: April 19, 2023

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se On November 2, 2020, Department of Defense (DoD) issued a statement of reasons (SOR) advising Applicant that his conduct raised security concerns under Guideline J (Criminal Conduct) of DoD Directive 5220.6 (January 2, 1992, as amended) (Directive). On October 25, 2022, DoD Consolidated Adjudication Services (CAS) revoked Applicant’s eligibility for access to classified information, and he appealed that revocation under the provisions of DoD Manual (DoDM) 5200.02. On December 2, 2022, Under Secretary of Defense (Intelligence & Security) Ronald Moultrie issued a memorandum that DoD civilian or military personnel whose clearance eligibility was revoked or denied between September 30, 2022, and the date of that memorandum shall be provided the opportunity to pursue the Defense Office of Hearings and Appeals (DOHA) hearing and appeal process set forth in the Directive. As a result of Secretary Moultrie’s memo, Applicant was given the opportunity to receive the process set forth in the Directive, and he elected that process. Tr. at 4.

On March 2, 2023, after holding a hearing, DOHA Administrative Judge Carol G. Ricciardello denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The SOR alleged that a Joint Personal Adjudication System Incident Report of May 29, 2020, disclosed that Applicant was arrested on or about May 24, 2020, for the felony charge of Torture/Willful Abuse of a Child-Family. The Judge found: On December 1, 2022, Applicant voluntarily accepted a plea agreement to have the felony charge reduced to the misdemeanor of harassment. He was represented by his criminal defense attorney. His plea of guilty was accepted and the court adjudicated his guilt. He was given a three-month jail sentence that was suspended for two years and was placed on probation for two years. He was also given a fine and required to pay court costs. (GE 5) On December 23, 2022, Applicant filed a motion to set aside his guilty plea. The motion was granted on February 9, 2023, and the plea agreement was set aside. The plea to harassment was removed and the original case has been reinstated, which means the pending charge of child abuse is a felony. As of February 13, 2023, a trial by jury date had not been scheduled. [Decision at 5.] In her analysis, the Judge concluded there was substantial evidence to prove that Applicant intentionally struck his child with a belt on the buttocks and bare legs, which left welts. The Judge further concluded that Applicant’s conduct casts doubt on his good judgment, trustworthiness, and reliability, and that he presented insufficient evidence to mitigate the security concerns arising from such conduct. Applicant’s appeal brief contains new evidence that the Appeal Board is prohibited from considering. Directive ¶ E3.1.29. His brief does not assert that the Judge committed any harmful error. 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. 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: Allison Marie Allison Marie Administrative Judge Member, Appeal Board