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ISCR Case 08-03432.a1 — CASE

ISCR Case 08-03432.a1denied

Case Headnote

ISCR Case No. 08-03432.a1

Jun 10, 2009· Hon. Michael D. Hipple· appeal

Summary

A security clearance applicant, representing herself, was denied a clearance primarily due to concerns under Guideline F (Financial Considerations) and Guideline J (Criminal Conduct). The denial stemmed from two arrests for assault, one of which involved a police officer. The judge noted the applicant did not express remorse for this criminal conduct.

Additionally, the applicant had numerous delinquent debts that remained unresolved at the time of the decision. These financial issues raised concerns about her judgment and reliability.

The combination of unaddressed criminal conduct and significant unresolved financial obligations led the judge to conclude that the applicant posed security concerns, resulting in the denial of her security clearance request.

Conditions Referenced

Disqualifying

AG JraisedCriminal Conduct
AG FraisedFinancial Considerations

Key Rule Quoted

“the fact that criminal charges were dropped, dismissed, or resulted in an acquittal does not preclude an Administrative Judge from finding an applicant engaged in the conduct underlying those criminal charges.”
— ISCR Case No. 99-0119 at 2 (App. Bd. Sep. 13, 1999)

Procedural Posture

SOR issuedAug 20, 2008
Answer filed—
Hearing heldDec 18, 2008
Decision dateJun 10, 2009

Cite For

Security Concerns Related to Criminal Conduct Under Guideline J
Financial Issues Impacting Security Clearance Under Guideline F
The Relevance of Unresolved Debts in Security Clearance Determinations

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 who was denied a security clearance due to criminal conduct and financial issues. The applicant argued that the Judge's findings were not supported by evidence and that the decision was arbitrary. The Board affirmed the Judge's decision, finding no error in the conclusions reached.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoan Caton Anthony — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge erred in finding that she had committed the offenses listed under Guideline J.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's material findings of security concern were supported by substantial record evidence and articulated a satisfactory explanation for the decision, maintaining a rational connection between the facts found and the choice made.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decision

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 F; Guideline J DIGEST: Applicant was arrested twice for assault and has numerous delinquent debts. Applicant’s criminal conduct caused or threatened to cause harm to others, yet she did not express remorse. It was not clear from the record that Applicant’s apparent inability to hold long-term employment was the result of a condition beyond her control. The Judge’s adverse conclusions are sustainable. Adverse decision affirmed. CASENO: 08-03432.a1 DATE: 06/10/2009 DATE: June 10, 2009 In Re: -------------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-03432

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se “Applicant was driving in traffic. A police officer, who was directing traffic, gave her hand signals indicating where she should drive. She ignored the officer’s instructions. Another officer then followed her in a police car and signaled for her to pull over. She did not immediately comply. When she finally stopped, an officer came to her vehicle and banged on the window and signaled her to get out of her car. When she came out of her car, she cursed the officer. Applicant was arrested, taken into custody, and charged with Assault Police Officer.” Decision at 2. Applicant was pulled over by police because her license plate was not properly attached to her car. In checking Applicant’s information in the police database, the officer who stopped Applicant learned that an arrest warrant had been issued for Applicant . . . The warrant had been issued because in January 2006 she had hit an automobile dealer’s employee with her automobile and left the premises.” Id. at 2-3. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 20, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On December 18, 2008, after the hearing, Administrative Judge Joan Caton Anthony denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issues on appeal: whether the Judge’s findings are supported by substantial record evidence; whether the Judge erred in failing to mitigate the security concerns raised in Applicant’s case; and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant has been arrested twice. The first incident occurred in 1995, when she was charged with assaulting a police officer. The case was dismissed before trial as a nolle prosequi. The second incident occurred in 2006. Applicant was arrested for reckless endangerment, first degree assault, second degree assault, and theft of property valued at less than $500. She pled guilty to second degree assault and to theft. The court imposed probation before judgement, her probation period being three years. Applicant has numerous delinquent debts, beginning in 2001. Her security clearance application listed 23 “employment activities” between 1994 and 2007. Decision at 3. Concerning the Guideline F security concerns, the Judge stated that Applicant’s “employment history shows short-term employment and periods of unemployment. It was not clear from the record that Applicant’s apparent inability to hold long- term employment was the result of a condition beyond her control. She admitted that the delinquencies alleged on the SOR remained unresolved, resulting in substantial debt which continues to the present day, a situation which raises concerns about Applicant’s good judgment.” Id. at 7. As regards Guideline J, the Judge noted that Applicant’s conduct caused or threatened to cause harm to others, yet she did not express remorse. The Board concludes that the Judge’s material findings of security concern are supported by substantial record evidence. See Directive ¶ E3.1.32.1. (Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.”) Applicant contends that the Judge erred in finding that she had committed the offenses listed under Guideline J. She states that the fact that the cases were resolved without formal convictions means that she did not commit the alleged misconduct. However, “the fact that criminal charges were dropped, dismissed, or resulted in an acquittal does not preclude an Administrative Judge from finding an applicant engaged in the conduct underlying those criminal charges.” ISCR Case No. 99-0119 at 2 (App. Bd. Sep. 13, 1999). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the 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 Judge’s decision that “it is not clearly consistent with national security to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 10. See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security’”).

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