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ISCR Case 21-00525 — CASE

ISCR Case 21-00525denied

Case Headnote

ISCR Case No. 21-00525

Apr 11, 2024· Hon. Gregg A. Cervi· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance based on concerns under Guideline J (Criminal Conduct) and Guideline E (Personal Conduct). The denial stemmed from the applicant's involvement in trafficking activities and the subsequent falsification of information.

Specifically, the applicant engaged in trafficking activities involving minors, which constituted a violation of federal law. Furthermore, the applicant falsified material facts within an affidavit directly related to these trafficking allegations. These actions raised disqualifying conditions J1 and E2.

The judge found the government's presented evidence credible and sufficient to support the denial. The appeal was subsequently denied, affirming the original decision due to the serious nature of the conduct and the evidence, which included a key investigative report.

Conditions Referenced

Disqualifying

J1raisedCriminal Conduct That Creates a Risk to National Security
E2raisedDeliberately Providing False or Misleading Information

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 issuedMar 21, 2022
Answer filed—
Hearing held2023-08-00
Decision dateApr 11, 2024

Cite For

Serious Allegations Under Guideline J and E
Admissibility of Evidence in Security Clearance Hearings
Standard for Granting Security Clearances in Relation to National Security

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 concerned the denial of a security clearance based on allegations of criminal conduct and personal conduct. The Applicant argued that the Judge improperly admitted a key piece of evidence. The Board affirmed the decision, finding no harmful error in the Judge's ruling.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRoss D. Hyams — denied the clearance

Decided ona hearing

Guidelines belowGuideline JGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge improperly admitted evidence offered by the Government.

Why the Board ruled this way

The Board found no harmful error in the Judge's admission of evidence and affirmed the decision based on the substantial evidence presented.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewNo de-novo re-decisionProcedural compliance

Appeal Board panel

Moira Modzelewski — Chair
James B. Norman
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. 21-00525

)

) 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 11, 2024

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Julie R. Mendez, Esq., Chief Department Counsel FOR APPLICANT Christopher Snowden, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On March 21, 2022, 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 the National Security Adjudicative Guidelines (AG) of Security Executive Agent Directive 4 (effective June 8, 2017) (SEAD 4) and DoD Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). On February 9, 2024, Defense Office of Hearings and Appeals Administrative Judge Ross D. Hyams denied Applicant’s security clearance eligibility. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Under Guideline J, the SOR alleged that Applicant agreed to harbor two Country A nationals, including a 17 year-old, who were to be trafficked from Country A to Country B for the purpose of engaging in prostitution, in violation of 18 U.S.C. §1591 (the federal prohibition of sex trafficking of children). Under Guideline E, this same conduct was cross-alleged. Additionally, the SOR alleged that Applicant was barred from U.S. military installations in Country B for this conduct and that he falsified material facts in an affidavit related to this matter. The Judge found

against Applicant on all allegations. On appeal, Applicant argues that the Judge improperly admitted evidence offered by the Government. We disagree and affirm the decision below. Applicant’s argument concerns a Naval Criminal Investigative Service (NCIS) report of investigation that the Judge admitted at hearing as Government Exhibit (GE) 3. Through Counsel, Applicant notes that GE 3 is the “primary source” of the Judge’s decision and that the Judge’s findings of fact “are almost entirely based” upon the document. Appeal Brief (AB) at 4. On appeal, Applicant argues through his Counsel that the report of investigation was not authenticated by a witness as required by the Directive. This argument is without merit. In September 2022, almost a year prior to the hearing, the Government provided Applicant’s Counsel with all proposed exhibits, including GE 3. Hearing Exhibit 1 at 1. At the hearing in August 2023, the Judge asked Applicant’s Counsel if he objected to any of the Government’s exhibits. Applicant’s Counsel responded, “No objections,” whereupon the Judge admitted all of the Government’s exhibits, including GE 3. Tr. at 14–25. Having failed to object to the admissibility of GE 3 at the hearing, Applicant cannot now complain on appeal that the Judge’s consideration of the document was error. See, e.g., ISCR Case No. 99-0519 at 8–9 (App. Bd. Feb. 23, 2001). Applicant has failed to establish that the Judge committed any harmful error or that he should be granted any relief on appeal. 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, AG ¶ 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: Moira Modzelewski Moira Modzelewski Administrative Judge Chair, Appeal Board Signed: James B. Norman James B. Norman Administrative Judge Member, Appeal Board Signed: Gregg A. Cervi Gregg A. Cervi Administrative Judge Member, Appeal Board