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ISCR Case 06-02705.a1 — CASE

Case record

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

Decision Date3/4/2008
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 06-02705.h1) →
Participants
Applicant Representation: Pro Se
Judge: Jeffrey D. Billett, Jean E. Smallin, William S. Fields
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline HDrug Involvement & Substance Misuse · Against Applicant
- Guideline JCriminal Conduct · Against Applicant

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ISCR Case 06-02705.a1denied

Case Headnote

ISCR Case No. 06-02705.a1

Mar 4, 2008· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing himself, was denied a security clearance due to concerns under Guideline H (Drug Involvement), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct). The denial was based on specific disqualifying conditions outlined in AG ¶ 15, AG ¶ 24, and AG ¶ 25.

The appeal board upheld the denial, concluding that the applicant's mitigating evidence was insufficient to overcome the government's security concerns. The judge had reasonably explained why the presented mitigating evidence was inadequate given the seriousness of the disqualifying conduct.

The board further noted that the applicant's disagreement with the judge's weighing of the evidence did not demonstrate an error in the decision. The presence of mitigating evidence does not guarantee a favorable outcome, and the judge's assessment of the evidence was deemed reasonable and supported by the record. The security clearance was ultimately DENIED.

Conditions Referenced

Disqualifying

AG ¶ 25raisedCriminal Conduct
AG ¶ 24raisedDrug Involvement
AG ¶ 15raisedPersonal Conduct

Key Rule Quoted

“The presence of some mitigating evidence does not alone compel a favorable security clearance decision.”

Procedural Posture

SOR issuedMar 21, 2006
Answer filed—
Hearing heldAug 31, 2007
Decision dateMar 4, 2008

Cite For

Insufficient Mitigating Evidence Under Guidelines H, E, and J
The Judge's Discretion in Weighing Evidence
The Principle That Mitigating Evidence Does Not Guarantee a Favorable Decision

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 brought by the applicant after the Administrative Judge denied a security clearance based on concerns under Guidelines H, E, and J. The applicant argued that the Judge did not adequately consider mitigating evidence. 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 belowMarc E. Curry — denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline EGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contends that the Judge did not give sufficient weight to Applicant’s mitigating evidence.

Why the Board ruled this way

The Board found that the Judge reasonably weighed the evidence and concluded that the mitigating evidence did not outweigh the disqualifying conduct, affirming the adverse decision.

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

Jeffrey D. Billett
Jean E. Smallin
William S. Fields

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 H; Guideline E; Guideline J DIGEST: The presence of some mitigating evidence does not alone compel a favorable security clearance decision. Adverse decision affirmed. CASENO: 06-02705.a1 DATE: 03/04/2008 DATE: March 4, 2008 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-02705

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 March 21, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline H (Drug Involvement), 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 hearing. On August 31, 2007, after the hearing, Administrative Judge Marc E. Curry denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. To the extent that Applicant’s explanations constitute new evidence, they may not be considered by the Board. See Directive ¶ E3.1.29. Such evidence would not demonstrate error on the part of the Judge. See, e.g., ISCR Case No. 06-00799 at 2 (App. Bd. Apr. 16, 2007). Applicant raised the following issue on appeal: whether the Judge erred by concluding that the security concerns raised under Guidelines H, E and J had not been mitigated. Applicant contends that the Judge’s adverse decision should be reversed because the Judge did not give sufficient weight to Applicant’s mitigating evidence. In support of his contention, Applicant essentially reargues his case, providing a detailed explanation as to the SOR allegations.1 Applicant’s arguments do not demonstrate that the Judge erred. 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 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 and whole-person factors. The Judge reasonably explained why the evidence which Applicant had presented in mitigation was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. The favorable record evidence cited by 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 security clearance decision under Guidelines H, E and J is sustainable.

ORDER

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