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ISCR Case 07-04866.a1 — CASE

ISCR Case 07-04866.a1denied

Case Headnote

ISCR Case No. 07-04866.a1

Sep 23, 2008· Hon. Jean E. Smallin· appeal

Summary

This security clearance application was denied under Guideline J (Criminal Conduct) due to the applicant's history of multiple criminal convictions. The disqualifying conditions were raised under AG ¶ 30.

The applicant, representing himself, had convictions for offenses including DWI and auto theft. While some of these convictions were set aside, this action was not due to a lack of evidence regarding guilt. The judge determined that the applicant did not sufficiently mitigate the security concerns arising from this criminal history.

Ultimately, the appeal board affirmed the adverse decision, concluding that the applicant failed to demonstrate that granting a security clearance would be consistent with national security interests.

Conditions Referenced

Disqualifying

AG ¶ 30raisedCriminal Conduct

Key Rule Quoted

“it is not clearly consistent with the interests 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 issuedSep 28, 2007
Answer filed—
Hearing heldJun 30, 2008
Decision dateSep 23, 2008

Cite For

Affirmation of Adverse Security Clearance Decisions Based on Criminal Conduct Under Guideline J
Insufficient Mitigation of Security Concerns Despite Some Convictions Being Set Aside
The Standard for National Security Interests in Granting Security Clearances

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 multiple criminal convictions. The applicant argued that the Judge's findings were not supported by substantial evidence and that the adverse decision was erroneous. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDavid M. White — 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 certain findings of fact were not supported by substantial evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse decision was erroneous.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the decision was not arbitrary or capricious. The Judge's conclusion regarding the applicant's failure to mitigate security concerns was reasonable based on the evidence presented.

Standard of review applied

Substantial-evidence reviewNo de-novo re-decisionNo new evidence on appeal

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 J DIGEST: Although some of Applicant’s convictions were set aside, it was not due to insufficient evidence of guilt. Judge had a reasonable basis to conclude that Applicant had failed to mitigate the security concerns in his case. Adverse decision affirmed. CASENO: 07-04866.a1 DATE: 09/23/2008 DATE: September 23, 2008 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-04866

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 September 28, 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 June 30, 2008, after the hearing, Administrative Judge David M. White denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant served as an undercover informant for the police. Some of his convictions were set aside due to this cooperation with law enforcement. Decision at 3. See also Tr. at 47-53. Applicant raised the following issues on appeal: whether certain of the Judge’s findings of fact are supported by substantial record evidence, and whether the Judge’s adverse security clearance decision is erroneous. Finding no error, we affirm. The Judge made sustainable findings that Applicant had been arrested and convicted of multiple offenses, including auto theft, leaving the scene of an accident, Driving While Intoxicated (DWI), larceny, producing marijuana, and disorderly conduct. Some of the convictions were set aside, though for reasons other than insufficient evidence of guilt. The most recent offense, in September 2005, was for a second offense of DWI. As a result of this incident he was sentenced to 90 days in jail (87 days suspended), a $3,000 fine ($1,500 suspended), and probation until June 2009.

The Board has examined the Judge’s decision in light of the record as a whole. The Judge has drawn a rational connection between the facts found and his ultimate adverse security clearance decision. 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 interests of national security to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 7. See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). In support of his appeal, Applicant submitted new evidence not contained in the record, which the Board cannot consider. “No new evidence shall be received or considered by the Appeal Board.” Directive ¶ E3.1.29.

ORDER

The Judge’s adverse security clearance decision 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