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ISCR 08-08606.a1: Guideline J security clearance appeal, denied (2009) · CASE

ISCR Case 08-08606.a1denied

Case headnote

ISCR Case No. 08-08606.a1

Dec 4, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A 46-year-old defense contractor was denied a security clearance under Guideline J (Criminal Conduct) due to multiple criminal charges, including domestic violence and Driving While Intoxicated (DWI). These charges raised security concerns under Disqualifying Condition J1.

Although some of the charges were dismissed, the judge found sufficient evidence of disqualifying conduct. The applicant failed to provide persuasive mitigation for the concerns arising from his criminal history.

Consequently, the judge concluded that the applicant did not adequately mitigate the security risks. The appeal board affirmed the denial, determining that the judge's findings were supported by substantial evidence.

Conditions referenced

Disqualifying

J1raisedCriminal Conduct

Key rule quoted

“[T]he 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 issuedApr 1, 2009
Answer filed—
Hearing heldSep 14, 2009
Decision dateDec 4, 2009

Cite for

Affirmation of Denial Based on Multiple Criminal Charges Under Guideline J
Substantial Evidence Standard in Security Clearance Cases
Impact of Dismissed Charges on Findings of Criminal Conduct

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 after being denied due to concerns under Guideline J related to criminal conduct. The applicant argued that the dismissal of some charges indicated the incidents did not occur and that the Judge's decision was arbitrary. The Board affirmed the denial, finding no harmful error in the Judge's decision and that the findings were supported by substantial evidence.

Appealed bythe applicant

Applicant representationAttorney

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 the dismissal of some criminal charges demonstrated that the alleged incidents did not occur.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant contended that the Judge's decision was arbitrary, capricious, or contrary to law.

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 dismissal of some charges did not negate the underlying conduct, and the Judge provided a rational connection between the facts and the decision made.

Standard of review applied

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

Appeal Board panel

Michael Y. Ra’anan (Chair)
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: The fact that criminal charges were dismissed does not preclude a Judge from finding that an applicant engaged in the underlying criminal conduct. The Board does not authority to waive provisions of the Directive. Adverse decision affirmed. CASENO: 08-08606.a1 DATE: 12/04/2009 DATE: December 4, 2009 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-08606

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Randi B. Walker, Esq., Alan V. Edmunds, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On April 1, 2009, 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 September 14, 2009, after the hearing, Administrative Judge David M. White denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. 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 decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is a 46-year-old employee of a defense contractor. He served in the military from 1984 until 1989, during which time he held a security clearance. Between 1994 and 2007 Applicant was charged with several instances of criminal conduct, including domestic violence, DWI, assault, and violation of a no-contact order. The domestic violence charges arose from Applicant’s interactions with his girlfriends. Although many of the charges were dismissed prior to trial, or reduced to lesser offenses, the Judge concluded that the evidence presented by the Government was sufficient to establish Guideline J disqualifying conditions. The Judge went on to conclude that “Applicant did not establish persuasive mitigation of the concerns arising [from the alleged misconduct]. His domestic violence arrests after physical arguments with multiple women over 12 years, for the most recent of which he remains on probation, preclude substantial mitigation[.]” Decision at 8. Applicant argues that the dismissal of some of the charges demonstrates that the alleged incidents did not occur. However, after examining the record, we conclude that the Judge’s findings 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.”). “[T]he 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). Applicant requests that the Board waive the one-year bar on reapplication mandated by Directive ¶ E3.1.37. The Board does not have authority to waive provisions of the Directive. Compare ISCR Case No. 04-01961 at 2-3 (App. Bd. Jul. 12, 2007); ADP Case No. 07-06039 at 3 (App. Bd. Jul. 8, 2008). 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 the interests of national security to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 10. “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).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, 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