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ISCR 06-14166.a1: Guideline J security clearance appeal, denied (2007) · CASE

ISCR Case 06-14166.a1denied

Case headnote

ISCR Case No. 06-14166.a1

Dec 31, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

The applicant, represented by counsel, was denied a security clearance under Guideline J (Criminal Conduct) due to a history of multiple arrests and misdemeanor convictions. These incidents occurred between 2000 and 2006, and the applicant remained on probation until April 2009, indicating a pattern of ongoing legal issues.

The judge determined that the applicant's presented mitigating evidence was insufficient to address the government's security concerns. Specifically, there was inadequate evidence of rehabilitation or mitigation to overcome the disqualifying conditions raised under J.1.

Consequently, the Board affirmed the denial of the security clearance, concluding that the applicant failed to mitigate the established security risks associated with their criminal conduct history.

Conditions referenced

Disqualifying

J.1raisedCriminal Conduct

Key rule quoted

“Once there has been a concern articulated regarding an applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance.”
Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)

Procedural posture

SOR issuedDec 28, 2006
Answer filed—
Hearing heldAug 6, 2007
Decision dateDec 31, 2007

Cite for

Insufficient Mitigation of Criminal Conduct Under Guideline J
Presumption Against Granting Security Clearance When Concerns Are Raised
Burden of Proof Shifts to Applicant to Establish Mitigation After Government Presents Evidence of 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 was from a decision denying the applicant a security clearance based on security concerns under Guideline J. The applicant argued that the Judge erred in not admitting certain exhibits and in concluding that the security concerns had not been mitigated. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMichael H. Leonard denied the clearance

Decided ona hearing

Guidelines belowGuideline J

What the Board reviewed

No specific harmful error alleged, raised by the applicantRejected
Applicant argued that the Judge erred by failing to admit and consider Exhibits A and B, and that the Judge erred in concluding that the security concerns under Guideline J had not been mitigated.

Why the Board ruled this way

The Board concluded that the Judge received and considered all relevant evidence, and that the Judge's conclusions regarding the lack of mitigation of security concerns were sustainable based on the record.

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)
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

FOR OFFICIAL USE ONLY When unredacted this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies KEYWORD: Guideline J DIGEST: The Board concludes that the Judge received and considered the exhibits that Applicant alleges were not considered by the Judge. Applicant has not demonstrated that the Judge erred in concluding that Applicant had failed to mitigate the security concerns arising under Guideline J. Adverse decision affirmed. CASENO: 06-14166.a1 DATE: 12/31/2007 DATE: December 31, 2007 In Re: -------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-14166

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Stephanie C. Hess, Esq., Department Counsel FOR APPLICANT D. Daniel Kleckley, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security Tr. at 32. Decision at 4. clearance. On December 28, 2006, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On August 6, 2007, after the hearing, Administrative Judge Michael H. Leonard 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: whether the Judge erred by failing to admit and consider Applicant’s Exhibits A and B; whether the Judge erred by concluding that the security concerns raised under Guideline J had not been mitigated. Applicant argues that the Judge erred by failing to admit and consider Applicant’s Exhibits A and B. The Board does not find this argument persuasive. 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. Sep. 18, 1992). A review of the record indicates that the Judge received Applicant’s Exhibits A and B for identification during the hearing, but withheld ruling on their admissibility until Department Counsel had an opportunity to examine them and make any objections. On June 29, 2007, Department Counsel filed a written Response to Applicant’s Submission of Exhibits A and B which stated that she had no objection to their admission into evidence. In his Decision, the Judge explicitly referenced Exhibit A twice. Based on the foregoing, the Board concludes that the Judge received and considered Applicant’s Exhibits A and B, and Applicant’s argument to the contrary is without merit. Applicant also argues that the Judge erred in concluding that the security concerns raised under Guideline J had not been mitigated, because the criminal conduct is not recent, not likely to recur, and there is clear evidence of rehabilitation. Applicant’s argument does not demonstrate that the Judge erred. Once there has been a concern articulated regarding an applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). After th the government 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. 06-10950 at 2 (App. Bd. Jul. 25, 2007). “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.” See, e.g., ISCR Case No. 05-11134 at 2 (App. Bd. Nov. 16, 2007). “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.” See, e.g., ISCR Case No. 05-07183 at 2 (App. Bd. Jun. 26, 2007). The Applicant has not met his burden of demonstrating that the Judge erred in concluding that the 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 made sustainable findings that Applicant had been arrested on four occasions between 2000 and 2006, had three misdemeanor convictions, and was on probation until April 2009. The Judge weighed the mitigating evidence offered by Applicant against the recency and seriousness of the disqualifying conduct, and reasonably explained why the evidence which the 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. See, e.g., ISCR Case No. 02-28041 at 4 (App. Bd. Jun. 29, 2005). Given the record that was before him, the Judge’s ultimate unfavorable security clearance decision under Guideline 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: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board