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ISCR Case 03-25153.a1 — CASE

ISCR Case 03-25153.a1denied

Case Headnote

ISCR Case No. 03-25153.a1

Mar 20, 2007· Hon. Jean E. Smallin· appeal

Summary

An applicant, representing himself, was denied a security clearance due to adverse findings under Guideline D (Sexual Behavior) and Guideline E (Personal Conduct). The denial stemmed from past sexual misconduct and time card fraud, which raised significant security concerns.

The Appeal Board affirmed the denial, concluding that the passage of time since the last incident of sexual misconduct was insufficient to mitigate the concerns. Furthermore, the applicant's arguments for mitigation were found unpersuasive by the Board.

Ultimately, the seriousness of the applicant's conduct and the lack of sufficient mitigating evidence led to the denial of the security clearance.

Conditions Referenced

Disqualifying

Guideline DraisedSexual Behavior
Guideline EraisedPersonal Conduct

Key Rule Quoted

“The passage of time since an applicant last engaged in conduct is a relevant factor that a Judge should take into account when evaluating the record evidence.”

Procedural Posture

SOR issuedSep 14, 2005
Answer filed—
Hearing held—Applicant requested decision on written record.
Decision dateMar 20, 2007

Cite For

Affirmation of Denial Based on Serious Past Conduct Under Guidelines D and E
Insufficient Mitigating Evidence Despite the Passage of Time
The Relevance of Past Conduct to Current Security Concerns

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 a security clearance based on concerns under Guidelines E and D. The applicant contested the Judge's findings regarding his past conduct and the application of mitigating factors. The Board affirmed the Judge's decision, finding it supported by substantial evidence and not arbitrary or capricious.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowShari Dam — denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline EGuideline D

What the Board reviewed

Erroneous finding of fact — raised by the applicantRejected
Applicant argues that the Judge’s adverse finding with respect to SOR paragraph 1.c is not supported by substantial evidence.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argues that the Judge should have concluded his disqualifying conduct under Guidelines E and D was extenuated or mitigated because the sexual behavior at issue occurred over 21 years ago.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the Judge properly weighed the evidence in reaching her decision. The Board concluded that the applicant's arguments did not demonstrate harmful error in the Judge's decision.

Standard of review applied

Substantial-evidence reviewNo de-novo re-decisionArbitrary-and-capricious review

Appeal Board panel

Jean E. Smallin
William S. Fields
James E. Moody

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

SYNOPSIS

KEYWORD: Guideline E; Guideline D DIGEST: Considering the record as a whole, the Judge’s material findings of fact with respect to SOR paragraph 1.c. reflect a plausible interpretation of the record evidence. A party’s disagreement with the Judge’s weighing of the evidence is not sufficient to demonstrate error. Applicant overstates the significance of the passage of time since his last incident of sexual misconduct. Adverse decision affirmed. CASENO: 03-25153.a1 DATE: 03/20/2007 DATE: March 20, 2007 In Re: ---------- SSN: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 03-25153

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On September 14, 2005, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline E (Personal Conduct) and The Judge found in favor of Applicant with respect to SOR paragraphs 1.band 1.e. Those favorable findings are not at issue on appeal. Guideline D (Sexual Behavior) of Department of Defense Directive 5220.6 (Jan. 2, 1992), as amended (Directive). Applicant requested the case be decided on the written record. On August 14, 2006, after considering the record, Administrative Judge Shari Dam denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.1 Applicant raised the following issues on appeal: whether the Judge’s adverse finding with respect to SOR paragraph 1.cis supported by substantial evidence; whether the Judge erred by concluding that the security concerns raised under Guidelines E and D had not been mitigated. (1) Applicant argues that the Judge’s adverse finding with respect SOR paragraph 1.cis not supported by substantial evidence, because Applicant’s company had never provided him with any documentary evidence that he had falsified his time cards. The Board does not find Applicant’s argument persuasive. The Board’s review of a Judge’s findings is limited to determining if they are supported by substantial evidence—such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record. Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620, (1966). The Board does not review a case de novo. Considering the record evidence as a whole, the Judge’s material finding with respect to SOR paragraph 1.creflects a plausible interpretation of the record evidence and is supported by substantial evidence. It is therefore sustainable.

(2) Applicant argues that the Judge should have concluded his disqualifying conduct under Guidelines E and D was extenuated or mitigated because the sexual behavior at issue occurred over 21 years ago and is therefore not recent. The Board does not find this argument persuasive. The application of disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. See, e.g., ISCR Case No. 01-14740 at 7 (App. Bd. Jan.15, 2003). Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. An applicant’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. The passage of time since an applicant last engaged in conduct is a relevant factor that a Judge should take into account when evaluating the record evidence. However, Applicant overstates the significance of the passage of time since his last incident of sexual misconduct. Given the seriousness of the conduct, the Judge could reasonably have concluded that the time that had elapsed was not significant. Moreover, the Board need not decide whether that passage of time would be significant or decisive in this case because the Judge's decision is not based solely on Applicant's sexual misconduct. Rather, the Judge's decision is also predicated on her findings that Applicant is vulnerable to influence or coercion because of that past conduct, and that Applicant had been terminated from his employment because of time card fraud in August 2002. The Judge's findings on this aspect of the case are unaffected by the passage of time since Applicant engaged in the sexual misconduct in question. See, e.g., ISCR Case No. 02-26685 at 5 (App. Bd. Dec. 22, 2004). Even dated conduct can be the source of an applicant's current vulnerability to coercion or influence. See ISCR Case No. 02-32254 at 4-5 (App. Bd. May 26, 2004). And the passage of time since Applicant's acts of sexual misconduct do not extenuate or mitigate his later acts of falsification. See ISCR Case No. 02-33091 at 3 (App. Bd. July 6, 2004). In this case, the Judge weighed the mitigating evidence against the seriousness of the disqualifying conduct and considered the possible application of relevant mitigating conditions. The Judge reasonably explained why the evidence presented in mitigation was insufficient to overcome the government’s security concerns. The favorable record evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 02-28041 at 4 (App. Bd. June 29, 2005). Given the record that was before her, the Judge’s ultimate unfavorable clearance decision under Guidelines E and D is sustainable.

ORDER

The decision of the Judge denying Applicant a clearance is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board