CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 09-01896.a1 — CASE

ISCR Case 09-01896.a1denied

Case Headnote

ISCR Case No. 09-01896.a1

Apr 29, 2010· Hon. Jeffrey D. Billett· appeal

Summary

A retired military colonel was denied a security clearance under Guideline E (Personal Conduct) due to admitted public indecency and extramarital affairs. The applicant acknowledged multiple instances of disqualifying conduct, which raised concerns under Disqualifying Condition E2.16.

While the applicant presented mitigating evidence, citing the remoteness of the conduct and current positive circumstances, the judge determined that this did not outweigh the seriousness of the admitted behavior. A significant factor in the denial was that the applicant's family and associates were unaware of his past actions.

Ultimately, the Board upheld the denial, concluding that the severity of the personal conduct, combined with the lack of disclosure to those close to him, presented an unacceptable security risk. Mitigating Condition E2.17 was considered but found insufficient to overcome the established security concerns.

Conditions Referenced

Disqualifying

E2.16raisedPersonal Conduct

Mitigating

E2.17rejectedMitigating ConditionsThe judge considered the applicant's evidence of mitigation but found it insufficient to overcome the government's security concerns.

Key Rule Quoted

“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 issuedSep 2, 2009
Answer filed—
Hearing heldFeb 4, 2010
Decision dateApr 29, 2010

Cite For

Denial of Security Clearance Based on Admitted Disqualifying Conduct Under Guideline E
Consideration of Mitigating Evidence in Light of Serious Disqualifying Behavior
The Importance of Family and Associates' Knowledge in Assessing Personal Conduct Security Concerns

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 disqualifying conduct under Guideline E. The Applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error and that the conclusions were supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoan Caton Anthony — denied the clearance

Decided ona hearing

Guidelines belowGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argues that the Judge's adverse security clearance decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's conclusions regarding the Applicant's conduct and the lack of knowledge by his family and associates. The Judge's decision was based on substantial evidence and articulated a satisfactory explanation for her decision, maintaining 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

Jeffrey D. Billett
Jean E. Smallin
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 E DIGEST: The Judge’s conclusions regarding the lack of knowledge on the part of Applicant’s family and associates about Applicant’s conduct are sustainable. Adverse decision affirmed. CASENO: 09-01896.a1 DATE: 04/29/2010 DATE: April 29, 2010 In Re: ----------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-01896

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 2, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 4, 2010, 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 issue on appeal: whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, the Board affirms the Judge’s adverse decision. The Judge made the following relevant findings of fact: Applicant admitted the three allegations of disqualifying conduct in the SOR. Applicant admitted masturbating in various public locations and stated that he had not engaged in such conduct since 2004. Applicant also admitted involvement in two affairs while he was married to his first wife–a ten-year affair with a man and an affair late in his first marriage to the woman he eventually married. Applicant attributed the affairs to his first wife’s depression and the effect it had on their physical relationship. Applicant is now happily married and is involved in a faith community with his current wife. Applicant also admitted engaging in sexual relations with prostitutes. Applicant attended a military service academy and retired from the military as a colonel with 26 years of service. Applicant has two grown sons from his first marriage. Applicant’s current spouse is aware of his ten-year affair, but is unaware of the other behavior of security concern discussed above. Applicant’s sons are not aware of any of that behavior. Applicant submitted character references and performance evaluations from former military superiors and from civilian employers. Those individuals are aware of little or none of the behavior. The Judge discussed and quoted from both parties’ exhibits, including Applicant’s character references and performance evaluations. Applicant does not allege factual error on the part of the Judge, but objects to her characterization of the evidence and her adverse conclusions. In making his objections, Applicant provides detail which was not revealed at the hearing. The Board is not able to consider such detail, since it constitutes new evidence. See Directive ¶ E3.1.29. Based on the record as a whole, the Board finds that the Judge’s findings and conclusions are based on substantial evidence or constitute reasonable characterization or inferences that could be drawn from the record. Applicant has not demonstrated error in this regard. See, e.g., ISCR Case No. 08-06605 at 4 (App. Bd. Feb. 4, 2010). With regard to the fact that Applicant has not told certain people about his past behavior, he points out that the Directive does not require him to do so. However, paragraph 16 of the Adjudicative Guidelines lists “[c]onditions that could raise a security concern and may be disqualifying[.]” One of the items on the list is “personal conduct, or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as (1) engaging in activities which, if known, may affect the person’s personal, professional, or community standing[.]” See Directive ¶ E2.16(e). The Judge’s conclusions regarding the lack of knowledge by Applicant’s family and associates about Applicant’s behavior are sustainable. Applicant underwent a psychological evaluation and submitted a copy of the resulting report at the hearing. Applicant maintains that the Judge focused only on one small portion of the report. There is a rebuttable presumption that the Judge considered all the record evidence unless the Judge clearly states otherwise. See, e.g., ISCR Case No. 07-18303 at 2 (App. Bd. Nov. 13, 2008). It is not necessary for the Judge to mention every item of evidence that she considered, but here the Judge actually referred to other portions of the report in her decision. Applicant has not demonstrated error on this point. Applicant also argues that the Judge should have found his conduct to be mitigated because he no longer participates in such conduct and because the conduct is so remote in time. The Judge considered Applicant’s evidence of mitigation. However, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security 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. A party’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. 07-10454 at 2 (App. Bd. Aug. 12, 2008). In this case, the Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct. The Judge considered the possible application of relevant mitigating conditions and discussed why she did not apply them in Applicant’s case. The Judge explained why the evidence Applicant presented in mitigation was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. The favorable 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. 08-02653 at 3 (App. Bd. Mar. 25, 2009). Given the record that was before her, the Judge’s ultimate unfavorable clearance decision under Guideline E is sustainable.

After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for her 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 is sustainable on this record. 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.’”) As an alternative to granting him a clearance outright, Applicant mentions the granting of a clearance “with a warning that any future incidents of a similar nature will result in a revocation of the clearance.” The Board has no authority to grant such conditional clearances. See, e.g., ISCR Case No. 08-07904 at 3 (Mar. 3, 2010).

ORDER

The Judge’s decision denying Applicant a security clearance is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board