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ISCR Case 06-08598.a1 — CASE

ISCR Case 06-08598.a1denied

Case Headnote

ISCR Case No. 06-08598.a1

Apr 24, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, represented by counsel, was denied a security clearance under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The denial stemmed from a history of criminal conduct, specifically multiple DUI charges and involvement in a multi-car accident from which the applicant left the scene. These actions raised disqualifying conditions J1 and E2.

Further contributing to the denial was the applicant's failure to timely report adverse information to their employer's security officer. The judge's findings were based on substantial evidence, establishing a rational connection between these facts and the adverse decision.

The Appeal Board affirmed the denial, concluding there was substantial evidence to support the security concerns and rejecting the applicant's claims of due process violations. The security clearance was ultimately denied.

Conditions Referenced

Disqualifying

J1raisedCriminal Conduct
E2raisedPersonal Conduct

Key Rule Quoted

“Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the record.'”
— Directive ¶ E3.1.32.1.

Procedural Posture

SOR issuedApr 17, 2007
Answer filed—
Hearing heldDec 13, 2007
Decision dateApr 24, 2008

Cite For

Substantial Evidence Standard in Security Clearance Cases
Impact of Uncharged Conduct on Security Clearance Decisions
Timeliness of Reporting Adverse Information as a Security Concern

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 an applicant who was denied a security clearance based on concerns under Guideline J (Criminal Conduct) and Guideline E (Personal Conduct). The applicant raised multiple issues on appeal, including claims of due process violations and bias. The Board affirmed the Judge's decision, finding no harmful errors in the proceedings.

Appealed bythe applicant

Applicant representationAttorney

Judge belowPaul J. Mason — denied the clearance

Decided ona hearing

Guidelines belowGuideline JGuideline E

What the Board reviewed

Due-process / fairness — raised by the applicantRejected
Applicant asserted that he was denied due process.
Erroneous finding of fact — raised by the applicantRejected
Applicant argued that certain of the Judge’s factual findings were not based upon substantial record evidence.
Legal error — raised by the applicantRejected
Applicant contended that the Judge erred in his rulings upon evidence.
Judge bias or partiality — raised by the applicantRejected
Applicant claimed that the Judge was biased against him.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant alleged that the Judge’s adverse security clearance decision was arbitrary, capricious, and contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision, affirming that the Judge's findings were based on substantial evidence and that the decision was not arbitrary, capricious, or contrary to law.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference 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

KEYWORD: Guideline J; Guideline E DIGEST: Applicant asserts that the Judge relied unreasonably on uncharged conduct. In fact the conduct is intimately linked to the allegations in the SOR and was reasonably before the Judge. Adverse decision affirmed. CASENO: 06-08598.a1 DATE: 04/24/2008 DATE: April 24, 2008 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-08598

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT John Bayard Glendon, Esq., Department Counsel FOR APPLICANT Thomas R. Townsend, Jr., Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On April 17, 2007, 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 E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On December 13, 2007, after the hearing, Administrative Judge Paul J. Mason denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether Applicant was denied due process; whether certain of the Judge’s factual findings were not based upon substantial record evidence; whether the Judge erred in his rulings upon evidence; and whether the Judge was biased against Applicant. We further construe Applicant’s brief as alleging that the Judge’s adverse security clearance decision was arbitrary, capricious, and contrary to law. Finding no error, we affirm. The Judge found that Applicant had twice been charged with DUI, each time pleading guilty to reckless driving. In addition, the Judge found that, about three years after the second DUI, Applicant caused a multi-car accident, with resulting injury, and left the scene. He turned himself in to the police several weeks later. Applicant did not report this incident to his employer’s security officer until several weeks later as well. We have examined Applicant’s allegations of error in light of the record as a whole. Applicant has not met his “heavy burden of persuasion” that he was denied the due process rights secured by the Directive. ISCR Case No. 05-11641 at (App. Bd. Jul. 31, 2007). Specifically Applicant asserts the Judge relied unreasonably on uncharged misconduct. The conduct in question has to do with Applicant’s failure timely to report adverse information. The conduct is intimately linked to the allegations in the SOR and was reasonably before the Judge. We conclude that the Judge’s material findings of security concern are based upon substantial record evidence. See Directive ¶ E3.1.32.1. (Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the record.”) Applicant has not met his “heavy burden of persuasion” that the Judge acted in such a fashion as to cause a reasonable person to question his fairness, impartiality, or professionalism. ISCR Case No. 05-04923 at 2 (App. Bd. Apr. 24, 2007). Finally, viewed in the light of the record as a whole, the Judge has articulated “a satisfactory explanation for [his] conclusions, including a rational connection between the facts found” and his adverse decision, both as to the intentional nature of Applicant’s omission as well as the application of Guideline E and J mitigating conditions. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). The record supports the Judge’s conclusion that Applicant has not met his burden of persuasion that it is “clearly consistent with the national interest” for him to have a clearance. Decision at 11. See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). Accordingly, the Board concludes that the Judge’s decision is not arbitrary, capricious, or contrary to law.

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