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ISCR Case 04-12241.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date3/2/2007
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Participants
Applicant Representation: Pro Se
Judge: Jean E. Smallin, James E. Moody, William S. Fields
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline FFinancial Considerations · Against Applicant
- Guideline HDrug Involvement & Substance Misuse · For Applicant
- Guideline JCriminal Conduct · Against Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
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ISCR Case 04-12241.a1denied

Case Headnote

ISCR Case No. 04-12241.a1

Mar 2, 2007· Hon. Jean E. Smallin· appeal

Summary

An applicant, representing himself, was denied a security clearance based on concerns under multiple guidelines. The denial stemmed from disqualifying conditions identified under Guideline J (Criminal Conduct), Guideline F (Financial Considerations), and Guideline E (Personal Conduct).

While a favorable finding was made under Guideline H (Drug Involvement), this mitigating evidence was ultimately deemed insufficient. The judge concluded that the applicant's disqualifying conduct was serious and outweighed any mitigating factors presented, failing to overcome the government's security concerns.

The appeal board affirmed the denial, agreeing that the applicant's mitigating evidence did not sufficiently outweigh the serious disqualifying conduct. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

Guideline JraisedCriminal Conduct
Guideline FraisedFinancial Considerations
Guideline EraisedPersonal Conduct

Mitigating

Guideline HappliedDrug Involvement

Key Rule Quoted

“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.”
— ISCR Case No. 01-14740 at 7 (App. Bd. Jan.15, 2003)

Procedural Posture

SOR issuedJul 27, 2005
Answer filed—Applicant elected to have the case decided on the written record.
Hearing held—No hearing; decided on written record.
Decision dateMar 2, 2007

Cite For

Insufficient Mitigating Evidence Under Guidelines J, F, and E
Weighing of Evidence in Security Clearance Decisions
Application of Mitigating Conditions Does Not Guarantee a Favorable Outcome

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 was from an adverse security clearance decision by Administrative Judge Joseph Testan, who denied the Applicant's request based on security concerns under multiple guidelines. The Applicant argued that the Judge mis-weighed the evidence and that his disqualifying conduct was isolated. The Board affirmed the Judge's decision, finding no harmful error in the weighing of evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoseph Testan — denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline JGuideline HGuideline FGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge reasonably weighed the evidence and that the favorable evidence cited by the Applicant did not demonstrate that the Judge's decision was arbitrary, capricious, or contrary to law.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

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 J; Guideline H; Guideline F; Guideline E DIGEST: The application of the disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one more applies to the particular facts of a given case. The favorable evidence cited by Applicant is not sufficient to prove that the Judge’s ultimate decision is not sustainable. Adverse decision affirmed. CASENO: 04-12241.a1 DATE: 03/02/2007 DATE: March 2, 2007 In Re: ---------- SSN: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 04-12241

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 July 27, 2005, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline J (Criminal Conduct), Guideline H (Drug Involvement), Guideline F (Financial Considerations), and Guideline E (Personal Conduct) 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 10, 2006, after considering the record, Administrative Judge Joseph Testan denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse clearance decision is arbitrary, capricious, or contrary to law. Applicant elected to have his case decided on the written record, and then did not respond to the government’s File of Relevant Material (FORM). On appeal he contends that the Judge mis- weighed the evidence—arguing that his disqualifying conduct amounted to isolated and aberrational instances when viewed in the context of his progressive life achievements. In support of that contention, Applicant argues that he is a law-abiding, hard-working individual of uprightness, morals, dignity and a model citizen. Applicant’s arguments do not demonstrate error on the part of the Judge. 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. In this case, the Judge reasonably weighed the mitigating evidence contained in the FORM against the seriousness of the disqualifying conduct, and considered the possible application of relevant mitigating conditions. The Judge found in favor of the Applicant under Guideline H. However, he reasonably explained why there was insufficient mitigating evidence to overcome the government’s other security concerns. The Board does not review a case de novo. The favorable evidence cited by the Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. Given the record that was before him, the Judge’s ultimate unfavorable clearance decision under Guidelines J, F and E is sustainable.

ORDER

The decision of the Administrative 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