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ISCR Case 05-14114.a1 — CASE

ISCR Case 05-14114.a1denied

Case Headnote

ISCR Case No. 05-14114.a1

Aug 9, 2007· Hon. Michael D. Hipple· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance under Guidelines D (Sexual Behavior), E (Personal Conduct), and J (Criminal Conduct). The denial stemmed from allegations of sexual misconduct involving children.

The Administrative Judge's decision to deny the clearance was based on substantial evidence, including the applicant's own admissions and the circumstances surrounding his discharge from the Air Force. The Judge found the applicant's claims of innocence not credible, and the absence of prior misconduct incidents did not mitigate the security concerns raised by the alleged conduct.

Ultimately, the Board affirmed the denial, concluding that the applicant's claims of innocence and an otherwise exemplary work history were insufficient to overcome the significant security concerns presented by the sexual misconduct involving children.

Conditions Referenced

Disqualifying

DappliedSexual Behavior
EappliedPersonal Conduct
JappliedCriminal Conduct

Key Rule Quoted

“The fact that criminal charges were dropped or dismissed does not preclude a Judge from finding that an applicant engaged in the conduct underlying the criminal charges.”
— ISCR Case No. 03-11906 at 3 (App. Bd. Jul. 19, 2005)

Procedural Posture

SOR issuedJun 30, 2006
Answer filed—
Hearing heldJan 30, 2007
Decision dateAug 9, 2007

Cite For

Credibility Determinations in Security Clearance Cases
Impact of Sexual Misconduct on Security Clearance Eligibility
The Relationship Between Criminal Charges and Security Clearance 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 allegations of sexual misconduct. The applicant argued that the Administrative Judge erred in finding him guilty of the allegations and that the decision was arbitrary and capricious. The Board affirmed the denial, finding the Judge's decision supported by substantial evidence and not contrary to law.

Appealed bythe applicant

Applicant representationAttorney

Judge belowLeRoy F. Foreman — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline DGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Administrative Judge erred in finding that he had repeatedly exposed himself and committed certain indecent acts in front of children.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Administrative Judge's unfavorable security clearance determination was arbitrary, capricious, or contrary to law due to the nature of the evidence against him.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant claimed that the Administrative Judge's unfavorable security clearance determination was arbitrary, capricious, or contrary to law considering his exemplary work history.

Why the Board ruled this way

The Board found that the Administrative Judge's findings were supported by substantial evidence and that the decision was not arbitrary, capricious, or contrary to law. The Board deferred to the Judge's credibility determinations and noted that the absence of prior incidents did not negate the findings of misconduct.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael D. Hipple
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

FOR OFFICIAL USE ONLY When unredacted this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies KEYWORD: Guideline E; Guideline D; Guideline J DIGEST: The fact that criminal charges were dropped or dismissed does not preclude a judge from finding that an applicant engaged in the conduct underlying the criminal charges. The Board is required to give deference to a judge’s credibility determinations. CASENO: 05-14114.a1 DATE: 08/09/2007 DATE: August 9, 2007 In Re: -------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 05-14114

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Chuck R. Pardue, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On June 30, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the The Administrative Judge’s formal findings in favor of Applicant involving other alleged conduct under SOR paragraphs 1.c, 1.d, 3.b, and 3.care not in issue in this appeal. Applicant did not object to the admission of this document into evidence. Rather, he only argued that it should be given little weight. Tr. at 16. Tr. at 31-33. basis for that decision—security concerns raised under Guideline E (Personal Conduct), Guideline D (Sexual Behavior), and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On January 30, 2007, after the hearing, Administrative Judge LeRoy F. Foreman 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 issues on appeal: (a) whether the Administrative Judge erred in finding that Applicant had repeatedly exposed himself and committed certain indecent acts in front of children in November 2000; (b) whether the Administrative Judge’s unfavorable security clearance determination is arbitrary, capricious, or contrary to law when the only evidence against Applicant is untried allegations that he had engaged in the sexual misconduct described above, coupled with Applicant’s 2001 decision to accept discharge from the Air Force under other than honorable conditions rather than face court-martial on those allegations; and (c) whether the Administrative Judge’s unfavorable security clearance determination is arbitrary, capricious or contrary to law, considering Applicant’s exemplary work history. 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 contrary evidence in the record. Directive ¶ E3.1.31.1. “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). In evaluating the Judge’s findings, we are required to give deference to the Judge’s credibility determinations. Directive ¶ E3.1.32.1. The Board does not review a case de novo. The record evidence available to the Judge included the Air Force Office of Special Investigations’ police report implicating Applicant (Government Exhibit 3) and Applicant’s own testimony that he accepted the Air Force’s offer of discharge knowing the nature of the charges against him, his right to contest his guilt at trial, and knowing what discharge under other than honorable conditions meant. The Judge also had the opportunity to observe Applicant’s demeanor during the hearing. Considering the record as a whole, the Judge’s findings that Applicant had engaged in the sexual misconduct and that his claims of innocence were not credible, are sustainable. 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)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962). “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). The Appeal Tr. at 81. Directive ¶ E2.2. Directive ¶ ¶ E2.2.2 and E2.2.3. Board may reverse a Judge’s decision to grant, deny or revoke a security clearance if it is arbitrary, capricious, or contrary to law. Directive ¶¶ E3.1.32.3 and E3.1.33.3. There is a presumption against granting a clearance. Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish any appropriate mitigating conditions. Directive ¶ E3.1.15. “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. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole.” See ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20, 2006). On appeal, Applicant contends that the absence of any other prior or repeat incidents of sexual misconduct supports the finding that the sexual misconduct alleged in the SOR never happened. At his hearing, Applicant had argued that the Air Force’s offer not to take his case to trial if he agreed to accept a discharge in lieu of court-martial, was an admission by the Air Force that it could not make its case against Applicant. Applicant also draws the Board’s attention to his exemplary work record and the six years that have passed since the incident. 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 fact that criminal charges were dropped or dismissed does not preclude a Judge from finding that an applicant engaged in the conduct underlying the criminal charges. See ISCR Case No. 03-11906 at 3 (App. Bd. Jul. 19, 2005); ISCR Case No. 02-10168 at 3 (App. Bd. Aug. 1, 2003). Security clearance decisions are not limited to considering an applicant's job performance or conduct during duty hours, but rather can be based on consideration of an applicant's conduct separate from the work place. An applicant with good or exemplary job performance may engage in conduct that has negative security implications. See ISCR Case No. 01-25466 at 3-4 (App. Bd. Jul. 22, 2004). The federal government must be able to repose a high degree of trust and confidence in persons granted access to classified information. Snepp v. United States, 444 U.S. 507, 511 n. 6 (1980). In assessing an applicant's security eligibility, the federal government can take into account whether an applicant's conduct or circumstances raise questions about the applicant's judgment, reliability, or trustworthiness. See ISCR Case No. 01-25466 at 4 (App. Bd. Jul. 22, 2004). Considering the security concern surrounding Applicant’s sexual misconduct, the Directive’s whole- person factors, and the “clearly consistent with the interests of national security” standard, it was not arbitrary, capricious or contrary to law for the Judge to deny Applicant a security clearance.

ORDER

The decision of the Judge denying Applicant a clearance is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple 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