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ISCR Case 06-10950.a1 — CASE

ISCR Case 06-10950.a1denied

Case Headnote

ISCR Case No. 06-10950.a1

Jul 25, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance was denied for an applicant, a former Navy service member and police officer, primarily under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The applicant's history included honorable service and a previous clearance, but the judge determined that unmitigated security concerns related to his personal and criminal conduct remained.

While Guideline G (Alcohol Consumption) was considered for mitigation, the judge found the evidence presented insufficient to overcome the government's security concerns. The decision highlighted that the applicant's personal and criminal conduct allegations were not adequately mitigated.

Ultimately, the security clearance was denied, and this decision was upheld on appeal. The ruling underscored the comprehensive "whole-person" analysis applied in security clearance adjudications, where the cumulative weight of unmitigated concerns can lead to denial despite positive aspects of an applicant's background.

Conditions Referenced

Disqualifying

EraisedPersonal Conduct
JraisedCriminal Conduct

Mitigating

GappliedAlcohol Consumption

Key Rule Quoted

“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.”

Procedural Posture

SOR issuedJun 23, 2006
Answer filed—
Hearing heldJan 24, 2007
Decision dateJul 25, 2007

Cite For

Whole-person Analysis in Security Clearance Determinations
Insufficient Mitigation of Personal and Criminal Conduct
Burden of Proof Shifts to Applicant After Government Raises Security Concerns

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 Guidelines E, J, and G. The applicant argued that the Judge erred in not mitigating the concerns based on his honorable service. The Board affirmed the Judge's decision, finding no harmful error in the assessment of the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoseph Testan — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline GGuideline EGuideline J

What the Board reviewed

Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argued that the Judge erred in concluding that the security concerns raised under Guidelines E and J had not been mitigated.

Why the Board ruled this way

The Board found that the Judge did not err in concluding that the security concerns raised under Guidelines E and J had not been mitigated, and that the Judge's decision was supported by substantial evidence and was not arbitrary or capricious.

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
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 G; Guideline E; Guideline J DIGEST: The Judge is not required to cite or discuss every piece of evidence. The application of the disqualifying and mitigating conditions requires the exercise of sound discretion in light of the record as a whole. Adverse decision affirmed. CASENO: 06-10950.a1 DATE: 07/25/2007 DATE: July 25, 2007 In Re: --------- --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-10950

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 June 23, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the The Judge found in favor of Applicant under Guideline G. That favorable finding is not at issue on appeal. basis for that decision—security concerns raised under Guideline G (Alcohol Consumption), 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 January 24, 2007, after the hearing, Administrative Judge Joseph Testan denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.1 Applicant raised the following issue on appeal: whether the Judge erred by concluding that the security concerns raised under Guidelines E and J had not been mitigated. Applicant argues that the Judge erred in concluding that the security concerns raised under Guidelines E and J had not been mitigated, in that he gave insufficient weight to the fact that Applicant had served honorably and faithfully in the Navy for 26 years; he had served honorably as a police officer for 21 years; and he had held a security clearance of 23 years. Applicant’s argument does not demonstrate that the Judge erred. There is a rebuttable presumption that the Judge considered all the record evidence unless he specifically states otherwise. See, e.g., DOHA Case No. 96-0228 at 3 (App. Bd. Apr. 3, 1997). The Judge is not required to cite or discuss every piece of record evidence. See, e.g., DISCR Case No. 90-1596 at 5 (App. Bd. Sept. 18, 1992). The federal government need not wait until an applicant actually mishandles or fails to properly handle classified information before it can deny or revoke access to such information. See Adams v. Laird, 420 F. 2d 230, 238-239 (D.C. Cir. 1969), cert. denied, 397 U.S. 1039 (1970). An applicant with good or exemplary job performance may engage in conduct that has negative security implications. See, e.g., ISCR Case No. 99-0123 at 3 (App. Bd. Jan. 11, 2000). The Directive's Guidelines set forth a variety of examples of off-duty conduct and circumstances which are of trustworthiness concern to the government and mandate a whole person analysis to determine an applicant's security clearance eligibility. A whole-person analysis is not confined to the workplace. See ISCR Case No. 03-11231 at 3 (June 4, 2004). “[T]here is a strong presumption against granting a security clearance.” Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). Once the government th presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. 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, 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 trustworthiness determination. 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. The Applicant has not met his burden of demonstrating that the Judge erred in concluding that the personal conduct and criminal conduct allegations had not been mitigated. Although Applicant strongly disagrees with the Judge’s conclusions, he has not established that those conclusions are arbitrary, capricious, or contrary to law. See Directive ¶ E3.1.32.3. In this case, the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct. He found in favor of Applicant with respect to some of the allegations. However, he reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome all 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. See, e.g., ISCR Case No. 02-28041 at 4 (App. Bd. June 29, 2005). Given the record that was before him, the Judge’s ultimate unfavorable security clearance decision under Guidelines E and J is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, 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