CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 06-11682.a1 — CASE

ISCR Case 06-11682.a1denied

Case Headnote

ISCR Case No. 06-11682.a1

Jun 6, 2007· Hon. Jean E. Smallin· appeal

Summary

A program analyst and former U.S. Marine Corps officer was denied a security clearance under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct) due to serious misconduct. The applicant had been convicted of conduct unbecoming an officer and adultery.

The judge determined that the applicant's failure to provide detailed facts regarding his court-martial raised additional security concerns under Guideline E. Specifically, disqualifying conditions J.1 and E.2.a were cited.

The appeal board affirmed the denial, concluding that the judge had not made any harmful error in applying the relevant mitigating conditions. The board emphasized the gravity of the applicant's actions and their implications for his trustworthiness, ultimately upholding the denial of the security clearance.

Conditions Referenced

Disqualifying

J.1raisedCriminal Conduct
E.2.araisedPersonal Conduct

Key Rule Quoted

“Conduct [Unbecoming an Officer] is action or behavior in an official capacity which, in dishonoring or disgracing the person as an officer, seriously compromises the... person’s standing as an officer...”
— Manual for Courts-Martial United States, Part IV, ¶ 59(c)(2)(2000 ed.)

Procedural Posture

SOR issuedJun 26, 2006
Answer filed—
Hearing heldSep 29, 2006
Decision dateJun 6, 2007

Cite For

Seriousness of Criminal Conduct Under Guideline J
Impact of Personal Conduct on Security Clearance Eligibility
Due Process Considerations in Security Clearance Hearings

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 under Guideline E and Guideline J. The applicant contended that the Judge's decision was arbitrary and that mitigating factors were misapplied. The Board affirmed the Judge's decision, finding no harmful error and sustaining the adverse determination under Guideline J.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJoan Caton Anthony — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge's decision is arbitrary, capricious, or contrary to law.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argues that the Judge improperly applied the relevant mitigating conditions and whole person factors.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision and affirmed the adverse determination under Guideline J, which was sustainable based on the evidence presented.

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

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 E; Guideline J DIGEST: Applicant contends that the Judge found against him on a matter not raised in the SOR under Guideline E. The Judge found against Applicant under allegations under both Guideline E and Guideline J. Her adverse determination under Guideline J is sustainable. Adverse decision affirmed. CASENO: 06-11682.a1 DATE: 06/06/2007 DATE: June 6, 2007 In Re: --------- SSN: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-11682

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Philip D. Cave, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On June 26, 2006, DOHA issued a statement of reasons advising Applicant of the basis for that decision–security concerns raised under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) “If in the case of a commissioned officer . . . the sentence of a court-martial extends to dismissal, that part of the sentence providing for dismissal may not be executed until approved by the Secretary concerned or by such Under Secretary or Assistant Secretary as the Secretary concerned may designate.” 10 U.S.C. § 871(b). (Directive). Applicant requested a hearing. On September 29, 2006, after the hearing, Administrative Judge Joan Caton Anthony denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issues on appeal: whether the Judge improperly applied the relevant mitigating conditions and whole person factors; and whether the Judge’s decision is arbitrary, capricious, or contrary to law. Finding no harmful error, we affirm. The Judge made the following findings of fact: Applicant is a program analyst working for a government contractor. He has held a security clearance since 1994. In December 1985, Applicant entered the U.S. Marine Corps. In 1997, he completed Officer Candidate School and was commissioned with the rank of Second Lieutenant. In July 2001, Applicant was charged under the Uniform Code of Military Justice (UCMJ) with fraternization, conduct unbecoming an officer, sodomy, and adultery. He entered a conditional plea of guilty and, upon conviction, was sentenced to 165 days confinement, forfeiture of all pay and allowances, and a dismissal from the Marine Corps. Applicant served 139 days of confinement. His conviction was still in appeal, and therefore his dismissal unexecuted, at the close of the record in this security clearance hearing. In arguing the issues on appeal in his security clearance case, Applicant states that he was advised by his military counsel prior to the security clearance hearing not to be specific in discussing the facts underlying his court-martial. As a consequence, the Judge concluded that his failure to discuss the facts in detail establishes security concerns with respect to the Guideline E allegations under Directive ¶ E2.A5.1.1.2: “Refusal to complete required security forms, releases, or provide full, frank and truthful answers to lawful questions of investigators, security officials or other official representatives in connection with a personnel security or trustworthiness determination.” Decision at 6. Applicant contends that the Judge found against him on a matter that was not raised in the SOR, therefore depriving him of the due process afforded by the Directive. The above disqualifying condition was not the only one on which the Judge relied in reaching her adverse conclusions under Guideline E. Moreover, even if it is assumed for the purposes of this appeal that Applicant’s position is correct as regards Guideline E, we nevertheless conclude that the Judge’s adverse clearance decision is sustainable under Guideline J. We note that the Judge’s findings are consistent with other record evidence: that Applicant was convicted of conduct unbecoming an officer and of adultery, the other charges having been dismissed either as part of his plea agreement or during the UCMJ appellate process; that the facts underlying the conviction include, at least in part, Applicant’s having offered a subordinate female Marine time off from work in exchange for sex; and that the Navy and Marine Corps Court of Criminal Appeals (Court) held that Applicant’s dismissal was a sentence appropriate for the offenses of which he was convicted. See Applicant Exhibit A at 1-2. This misconduct is serious, the Court describing it as “Conduct [Unbecoming an Officer] is action or behavior in an official capacity which, in dishonoring or disgracing the person as an officer, seriously compromises the. . . person’s standing as an officer. . .” Manual for Courts- Martial United States, Part IV, ¶ 59(c)(2)(2000 ed.). “unconscionable.” Id. at 2. Viewed in light of the record as a whole, we hold that the Judge’s adverse decision under Guideline J is neither arbitrary, capricious, nor contrary to law.

ORDER

The Judge’s decision 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