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ISCR Case 07-16210.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date10/20/2008
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 07-16210.h1) →
Participants
Applicant Representation: Pro Se
Judge: Michael Y. Ra'anan, Michael D. Hipple, William S. Fields
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline GAlcohol Consumption · For Applicant
- Guideline HDrug Involvement & Substance Misuse · For Applicant
- Guideline JCriminal Conduct · Against Applicant

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Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
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ISCR Case 07-16210.a1denied

Case Headnote

ISCR Case No. 07-16210.a1

Oct 20, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

This security clearance application was denied under Guidelines G (Alcohol Consumption), H (Drug Involvement), and J (Criminal Conduct). The applicant, representing himself, faced disqualification primarily due to a pattern of criminal conduct, as outlined in AG ¶ 30.

Specific incidents included DUI, assault, domestic violence, and possession of a controlled substance. While the applicant presented some favorable evidence, invoking mitigating conditions AG ¶ 21 and AG ¶ 22, the judge determined this was insufficient to resolve the government's security concerns.

Consequently, the applicant's security clearance was denied, and this decision was affirmed on appeal.

Conditions Referenced

Disqualifying

AG ¶ 30raisedCriminal Conduct

Mitigating

AG ¶ 21appliedAlcohol Consumption
AG ¶ 22appliedDrug Involvement

Key Rule Quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedFeb 29, 2008
Answer filed—
Hearing heldJul 16, 2008
Decision dateOct 20, 2008

Cite For

Insufficient Mitigation of Criminal Conduct Under Guideline J
Weighing of Evidence in Security Clearance Decisions
Standards for Granting Security Clearances Consistent with 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 an applicant seeking a security clearance who was denied due to security concerns related to multiple criminal incidents. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the weighing of evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMichael H. Leonard — denied the clearance

Decided ona hearing

Guidelines belowGuideline JGuideline GGuideline H

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse security clearance decision under Guideline J was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for his decision, including a rational connection between the facts found and the choice made.

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
Michael D. Hipple
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

KEYWORD: Guideline J; Guideline G; Guideline H DIGEST: Applicant failed to mitigate security concerns arising from incidents of DUI, Assault, Domestic Violence, Possession of a Controlled Substance, among others. Mere disagreement with the Judge’s weighing of the evidence is not sufficient to establish error. Adverse decision affirmed CASENO: 07-16210.a1 DATE: 10/20/2008 DATE: October 20, 2008 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-16210

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 February 29, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline J (Criminal Conduct), Guideline G (Alcohol Consumption) and Guideline H (Drug Involvement) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On July 16, 2008, 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. The Judge’s favorable findings under Guidelines G and H are not at issue on appeal. The Judge found that as of the date of the hearing, Applicant was still serving probation for his 2006 DUI and still pending disposition of a charge for driving with a revoked license. Applicant raised the following issue on appeal: whether the Judge’s adverse security clearance decision under Guideline J is arbitrary, capricious, or contrary to law.1 Applicant argues that the favorable evidence in the record was sufficient, as a matter of law, to mitigate any security concerns presented by Applicant’s conduct. Applicant’s argument does not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The presence of some mitigating evidence does not alone compel the Judge to make a favorable 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. 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. 07-05632 at 2 (App. Bd. May 13, 2008). In this case, the Judge found that between 1995 and 2006 Applicant had been involved in seven criminal incidents, including Driving Under the Influence, Driving with a Suspended License, Assault, Menacing, Domestic Violence, Possession of a Controlled Substance and Carrying a Pistol in a Vehicle without a Permit. A review of the record indicates that the Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. Decision at 6-7. He reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome the government’s security concerns. Id. 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. 06-11172 at 3 (App. Bd. Sep. 4, 2007). The Judge examined the relevant data and articulated a satisfactory explanation for his decision, “including a ‘rational connection between the facts found and the choice made.’” 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 general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). Accordingly, the Judge’s adverse decision 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: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board