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ISCR Case ISCR Case No. 23-00327 — CASE

ISCR Case ISCR Case No. 23-00327denied

Case Headnote

ISCR Case No. ISCR Case No. 23-00327

Jul 31, 2024· Hon. Gregg A. Cervi· appeal

Summary

The applicant in ISCR Case No. 23-00327 was denied a security clearance under Guideline J, Criminal Conduct. The applicant admitted to the allegations of criminal conduct that formed the basis for the denial.

During the appeal process, the applicant contested the Judge's reference to Guideline E in the whole-person analysis, arguing it constituted a due process violation. However, the appeal board affirmed the Judge's decision.

The board concluded there was no due process violation and that the Judge's findings were fully supported by the evidence presented. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

JraisedCriminal Conduct

Procedural Posture

Decision DateJul 31, 2024

Cite For

Affirmation of Judge's Decision on Criminal Conduct Under Guideline J
No Due Process Violation in Whole-person Analysis
Applicant's Admission of Allegations as a Key Factor in Denial

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 under Guideline J. The Applicant argued that the Judge's reference to Guideline E in the whole-person analysis constituted a due process violation and was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error and that the Judge's analysis was appropriate and supported by the record.

Appealed bythe applicant

Applicant representationAttorney

Judge belowCharles C. Hale — denied the clearance

Decided ona hearing

Guidelines belowGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge's consideration of Guideline E factors in the whole-person analysis was arbitrary and capricious.
Due-process / fairness — raised by the applicantRejected
The Judge violated the Applicant's due process rights by considering Guideline E factors.

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 reference to Guideline E was a typographical error that did not affect the outcome of the case. The Judge's findings and analysis were focused on Guideline J, and the Applicant did not demonstrate any harmful error or due process violation.

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

Moira Modzelewski — Chair
Gregg A. Cervi
James B. Norman

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. 23-00327

)

) 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: July 31, 2024

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Julie R. Mendez, Esq., Chief Department Counsel FOR APPLICANT Eric Leckie, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On August 8, 2023, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision – security concerns raised under Guideline J (Criminal Conduct) of the National Security Adjudicative Guidelines (AG) of Security Executive Agent Directive 4 (effective June 8, 2017) and DoD Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On June 13, 2024, Defense Office of Hearings and Appeals Administrative Judge Charles C. Hale denied Applicant’s security clearance eligibility. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. For reasons stated below, we affirm the Judge’s decision. Under Guideline J, the SOR alleged three criminal incidents dating from 2017, 2021, and 2022. Applicant admitted all allegations in his answer to the SOR, and the Judge found adversely to him on all three. On appeal, Applicant highlights that the Judge referred to Guideline E in his whole-person analysis. Through Counsel, Applicant argues that the Judge violated his due process rights in considering Guideline E factors, as the SOR alleged no Guideline E security concerns. In particular, Applicant argues, the Judge improperly considered his lack of candor, as “[t]his

language clearly stems from Guideline E.” Appeal Brief (AB) at 5. In addition to raising a due process concern, Applicant argues that the decision is arbitrary and capricious because of the Judge’s consideration of Guideline E factors. We find neither of these arguments persuasive. As Applicant notes, the Judge erroneously mentioned Guideline E in his decision, stating “I have incorporated my comments under Guidelines J and E in my whole-person analysis.” Decision at 6. As Applicant also notes, this “is the only mention of Guideline E in the entire decision.” AB at 4. The Judge’s findings of fact and mitigation analysis are exclusively focused on Guideline J. We do not evaluate a Judge's decision based on isolated words or sentences but instead on the decision viewed as a whole. ISCR Case No. 20-00204 at 4 (App. Bd. Feb. 2, 2022). Our review of the entire decision confirms that the Judge’s reference to Guideline E was a typographical error and a harmless one, as it did not likely affect the outcome of the case. E.g., ISCR Case No. 95-0495 at 4 (App. Bd. Mar. 22, 1996). Contrary to Applicant’s argument, we discern no due process issue, as the decision gives us no reason to believe that the Judge somehow conflated the Guideline J allegations with Guideline E issues or that he improperly applied the whole-person factors. Applicant has not established that he was denied the due process afforded by the Directive. Finally, Applicant’s contention that a lack of candor may only be considered in the context of Guideline E is wholly without foundation in the Directive or our precedent. Indeed, the Directive requires us to give deference to a judge’s credibility determination regardless of the Guideline at issue. Directive ¶ E3.1.32.1. Applicant’s Counsel has failed to establish any harmful error below. None of Applicant’s arguments are sufficient to demonstrate the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. The record supports a conclusion that the Judge examined the relevant evidence, complied with the requirements of the Directive in his mitigation and whole- person analyses, 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). “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security. AG ¶ 2(b).

ORDER

The decision in ISCR Case No. 23-00327 is AFFIRMED. Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Chair, Appeal Board Signed: Gregg A. Cervi Gregg A. Cervi Administrative Judge Member, Appeal Board Signed: James B. Norman James B. Norman Administrative Judge Member, Appeal Board