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ISCR Case 05-02833.a1 — CASE

ISCR Case 05-02833.a1denied

Case Headnote

ISCR Case No. 05-02833.a1

Mar 19, 2007· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance primarily due to concerns under Guideline J (Criminal Conduct). The appeal board upheld this denial, affirming the judge's finding that the applicant's pattern of criminal conduct presented unmitigated security risks.

While the applicant received a favorable finding under Guideline H (Drug Involvement), this did not outweigh the concerns raised by his criminal history. The judge determined that the applicant failed to provide sufficient independent evidence of rehabilitation to mitigate the security concerns associated with his past conduct.

The denial was based on a comprehensive review of the applicant's criminal history, rather than isolated incidents, and the judge concluded that the applicant had not adequately demonstrated a change in behavior to warrant a clearance.

Conditions Referenced

Disqualifying

JraisedCriminal Conduct

Mitigating

HappliedDrug Involvement

Key Rule Quoted

“A Judge can find an applicant has engaged in criminal conduct even if the criminal charges against the applicant were dropped or dismissed.”
— ISCR Case No. 03-11906 at 3 (App. Bd. July 19, 2005)

Procedural Posture

SOR issuedSep 27, 2005
Answer filed—
Hearing heldJul 27, 2006
Decision dateMar 19, 2007

Cite For

Consideration of Criminal Conduct as a Whole Under Guideline J
Insufficient Evidence of Rehabilitation to Mitigate Security Concerns
Discretion in Applying Mitigating Conditions Based on the Overall Record

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 criminal conduct and drug involvement. The applicant argued that the judge's decision was arbitrary and that prior incidents were not recent. The Board affirmed the judge's decision, finding no harmful error in the assessment of the applicant's conduct.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowNoreen A. Lynch — denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse security clearance decision under Guideline J was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge properly considered the record as a whole and that the adverse decision was not arbitrary, capricious, or contrary to law.

Standard of review applied

No de-novo re-decisionNo new evidence on appealSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural compliance

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 DIGEST: A judge can find an applicant engaged in criminal conduct even if criminal charges were dropped or dismissed. The Judge properly considered the record as a whole, rather than analyzing the evidence piecemeal. Adverse decision affirmed. CASENO: 05-02833.a1 DATE: 03/19/2007 DATE: March 19, 2007 In Re: ---------- SSN: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 05-02833

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 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) and Guideline H (Drug Involvement) pursuant to Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On July 27, 2006, Administrative Judge The Judge found in favor of Applicant under Guideline D. That favorable finding is not at issue on appeal. Noreen A. Lynch denied Applicant’s request for a security clearance. Applicant submitted a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s unfavorable security clearance decision under Guideline J is arbitrary, capricious, or contrary to law. Applicant argues that the Judge’s adverse security clearance decision should be reversed because, apart from the July 2006 arrest for second degree assault, Applicant’s other criminal incidents date from the 1980sand, therefore, are not recent. Applicant also argues that the Judge erred in not applying a Guideline I Mitigating Condition 3 to mitigate his conduct under Guideline J. In support of his argument, Applicant presents new documentary evidence to establish that he was acquitted of the 2006 charge subsequent to the hearing in this case, and that he also has demonstrated rehabilitation by participating in marriage counseling. Applicant’s arguments do not demonstrate that the Judge erred. The Board may not consider Applicant’s new evidence on appeal. See Directive ¶ E3.1.29. Its submission does not demonstrate error on the part of the Administrative Judge. See, e.g., ISCR Case No. 02-12789 at 3 (App. Bd. May 13, 2005). A Judge can find an applicant has engaged in criminal conduct even if the criminal charges against the applicant were dropped or dismissed. See, e.g., ISCR Case No. 03-11906 at 3 (App. Bd. July 19, 2005); ISCR Case No. 03-21761 at 5 (App. Bd. Nov. 28, 2005). The ultimate state court dispositions of Applicant’s criminal incident did not preclude the Judge from making a finding adverse to the Applicant. The Judge was not required, as a matter of law, to apply a Guideline I Mitigating Condition 3 with respect to security concerns raised under Guideline J. Considering the record as a whole, the Judge’s material findings with respect to Applicant’s conduct of security concern reflect a plausible interpretation of the record evidence. The application of disqualifying and mitigating conditions does not turn simply on a finding that one or more of them applies to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole. 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 properly considered the significance of Applicant’s pattern of conduct as a whole, rather than analyzing each separate criminal incident in a piecemeal fashion. See, e.g., ISCR Case No. 04-12648 at 3-4 (App. Bd. Oct. 20, 2006) citing Raffone v. Adams, 468 F. 2d 860 (2 Cir. 1972) (taken together, separate events may have a significance that is missing when each nd event is viewed in isolation). The Judge based her adverse decision, in part, on the fact that Applicant had not offered any independent evidence of rehabilitation and positive changes in behavior. It was not unreasonable for the Judge to expect the Applicant to present evidence to establish mitigation in that regard. In her decision, the Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct and considered the possible application of relevant mitigating conditions. She found for Applicant with respect to the Guideline H allegations. However, the Judge reasonably explained why the evidence which the Applicant had presented in mitigation under Guideline J was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. Given the record that was before her, the Judge’s ultimate unfavorable clearance decision under Guideline J is not arbitrary, capricious, or contrary to law.

ORDER

The decision of the Judge denying Applicant a security 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