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ISCR Case 06-25219.a1 — CASE

ISCR Case 06-25219.a1denied

Case Headnote

ISCR Case No. 06-25219.a1

Aug 11, 2008· Hon. Michael D. Hipple· appeal

Summary

This security clearance application was denied under Guideline J (Criminal Conduct) due to the applicant's extensive criminal history. The applicant, a recovering heroin addict, presented evidence of rehabilitation, including a clean record since 1997 and positive testimonials.

However, the applicant's criminal record included over 35 arrests for serious offenses. While the judge acknowledged the applicant's 11 years of sobriety and efforts toward rehabilitation, the sheer volume and nature of the past criminal conduct were deemed too extensive to mitigate the security concerns.

Ultimately, the judge concluded that the applicant's lengthy criminal history was inconsistent with national security interests, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 30raisedCriminal Conduct

Mitigating

AG ¶ 31rejectedCriminal ConductThe judge found that the applicant's evidence of rehabilitation did not sufficiently mitigate the extensive criminal history.

Key Rule Quoted

“It is not clearly consistent with the interest of national security to grant Applicant eligibility for a security clearance.”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedApr 2, 2007
Answer filed—
Hearing heldMay 12, 2008
Decision dateAug 11, 2008

Cite For

Evaluation of Extensive Criminal History Under Guideline J
Consideration of Rehabilitation Evidence in Security Clearance Cases
Impact of Past Criminal Conduct on National Security Interests

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 criminal conduct under Guideline J. The Applicant argued that the Judge erred in weighing evidence of rehabilitation and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationAttorney

Judge belowEdward W. Loughran — denied the clearance

Decided ona hearing

Guidelines belowGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge should have given more weight to his evidence of rehabilitation.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the adverse security clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's application of the mitigating factors and concluded that the Judge's decision was sustainable based on the extent of the Applicant's criminal record.

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 D. Hipple
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 J DIGEST: Even though eleven years had elapsed between the last criminal act and the date of the decision, the Judge was unable to conclude that Applicant had mitigated the security concerns in his case. The Judge’s decision is sustainable, given the extent of Applicant’s criminal record. Adverse decision affirmed. CASENO: 06-25219.a1 DATE: 08/11/2008 DATE: August 11, 2008 In Re: ----------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-25219

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Sheldon I. Cohen, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On April 2, 2007, 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 May 12, 2008, after the hearing, Administrative Judge Edward W. Loughran 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 the Judge erred in his application of the Guideline J mitigating factors; and whether his adverse security clearance decision was arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is an employee of a defense contractor and a recovering heroin addict. He began using and distributing marijuana in high school. He also began distributing heroin while in high school and used heroin for the first time near the end of his senior year. He used heroin more and more, to the point of daily use, and became an addict. When Applicant could no longer supply his habit by distributing drugs, he began committing other criminal activity. “He was arrested on more than 35 occasions between 1980 and 1994, for offenses including burglary, breaking and entering, grand larceny, probation violation, receiving stolen property, assault, shoplifting, theft, armed robbery, and numerous drug-related charges.” Decision at 3. He served 35 months in the state penitentiary for his offenses. His last use of heroin was in 1997, when he turned himself in to authorities for a probation violation, i. e., having failed a probation office drug test. Since that time, Applicant has been clean and sober. He has attended Narcotics Anonymous and has received degrees from respected universities. He has a support system and has been “universally praised by family, friends, co-workers, and supervisors as honest, hard working, [and] trustworthy . . .” Decision at 5.

In evaluating Applicant’s case, the Judge gave consideration to the time period he had been clean and sober and the other evidence of rehabilitation. However, he balanced that against the length and seriousness of Applicant’s criminal history. The Judge concluded that Applicant’s “drug and criminal record is so extensive, that even almost eleven years later, I am unable to state that it is clearly consistent with the national interest to grant him a security clearance.” Decision at 8. Applicant argued that the Judge should have given more weight to his evidence of rehabilitation. However, a review of the entire record demonstrates that the Judge has drawn a rational connection between the facts found and his ultimate adverse security clearance decision, both as regards to the pertinent mitigating conditions and the whole-person analysis. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). See also Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The Judge’s decision that “it is not clearly consistent with the interest of national security to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 9. See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED.

Signed: Michael D. Hipple Michael D. Hipple 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