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ISCR 04-12680.a2: Guideline E security clearance appeal, denied (2007) · CASE

ISCR Case 04-12680.a2denied

Case headnote

ISCR Case No. 04-12680.a2

Dec 27, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The denial stemmed from a history of alcohol-related arrests and convictions, which raised significant security concerns.

The Board specifically found the applicant's denial of intentional falsification to be not credible. This lack of credibility, combined with the documented criminal conduct, established a rational connection between the presented facts and the adverse decision.

Consequently, the Board affirmed the denial of the security clearance, citing disqualifying conditions under Adjudicative Guidelines Paragraphs 14 and 15.

Conditions referenced

Disqualifying

AG ¶ 15raisedCriminal Conduct
AG ¶ 14raisedPersonal Conduct

Key rule quoted

“A Judge is required to “examine the relevant data and articulate a satisfactory explanation for” the decision, “including a ‘rational connection between the facts found and the choices made’.””
Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)

Procedural posture

SOR issuedAug 3, 2005
Answer filed—
Hearing held—
Decision dateDec 27, 2007

Cite for

Credibility Determinations Regarding Applicant's Statements
Impact of Criminal History on Security Clearance
Rational Connection Requirement for Adverse Decisions

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 Guideline E and Guideline J. The Department Counsel appealed the Administrative Judge's initial grant of clearance, which was later reversed upon remand. The Board affirmed the Judge's decision to deny the clearance, finding no harmful error in the application of mitigating conditions.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowShari Dam denied the clearance

Decided onthe written record

Guidelines belowGuideline EGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the Government (Department Counsel)Rejected
The Judge's application of the relevant Guideline E mitigating conditions was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board concluded that the Judge has drawn a rational connection between the facts found and her ultimate adverse decision, affirming the denial of the security clearance.

Standard of review applied

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

Appeal Board panel

Michael Y. Ra’anan (Chair)
Jean E. Smallin
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

FOR OFFICIAL USE ONLY When unredacted this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies KEYWORD: Guideline E; Guideline J DIGEST: The Board concludes that the Judge has drawn a rational connection between the facts found and her ultimate adverse decision. Adverse decision affirmed. CASENO: 04-12680.a2 DATE: 12/27/2007 DATE: December 27, 2007 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 04-12680

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 August 3, 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 Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On August 31, 2006, after considering the record, Administrative Judge Shari Dam granted Applicant’s request for a security clearance. Department Counsel filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. On May 21, 2007, the Board remanded the case to the Judge. On September 27, 2007, the Judge issued a remand decision, this time denying Applicant a security clearance. Applicant filed a timely appeal in accordance with the Directive. Applicant raised the following issue: whether the Judge’s application of the relevant Guideline E mitigating conditions was arbitrary, capricious, or contrary to law. Finding no error we affirm. The Judge made the following pertinent findings of fact: In 2001 Applicant was arrested for DUI and for negligent operation of a vehicle. He was acquitted of the DUI but convicted of the other charge. A month later he was arrested for operating a vehicle without a license. In completing the Security Clearance Application (SCA) in this case, Applicant answered “no” to questions inquiring (a) whether he had ever been charged or convicted of any offense related to alcohol and (b) whether he had ever been arrested, charged, or convicted of any offense not otherwise listed in the SCA. The Judge concluded that Applicant’s denial of intentional falsification was not credible. We have reviewed the Judge’s decision in light of the record as a whole. We conclude that the Judge has drawn “a rational connection between the facts found” and her ultimate adverse decision. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). See also Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). (A Judge is required to “examine the relevant data and articulate a satisfactory explanation for” the decision, “including a ‘rational connection between the facts found and the choices made’”). “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). Accordingly, we hold that this decision is neither arbitrary, capricious, nor contrary to law. See Directive ¶¶ E3.1.32.3 and E3.1.33.3.

ORDER

The Judge’s adverse security clearance decision is AFFIRMED.

Signed; Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board