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ISCR Case 09-05995.a1 — CASE

ISCR Case 09-05995.a1denied

Case Headnote

ISCR Case No. 09-05995.a1

Feb 10, 2011· Hon. Jean E. Smallin· appeal

Summary

A defense contractor was denied a security clearance due to concerns under Guideline J (Criminal Conduct). The applicant admitted to allegations in the Statement of Reasons regarding criminal conduct, which included aggravated assault and ongoing charges of disorderly conduct while on probation.

While the applicant received favorable findings under Guideline G (Alcohol Consumption), these mitigating conditions were not sufficient to overcome the disqualifying criminal conduct. The judge's decision to deny the clearance was affirmed, as the applicant failed to rebut the presumption that all evidence was considered.

Ultimately, the applicant's admitted criminal history, specifically the aggravated assault and continued disorderly conduct while on probation, led to the denial of the security clearance.

Conditions Referenced

Disqualifying

JraisedCriminal Conduct

Mitigating

GappliedAlcohol Consumption

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 24, 2010
Answer filedApr 4, 2010
Hearing heldOct 27, 2010
Decision dateFeb 10, 2011

Cite For

Affirmation of Adverse Decision Based on Criminal Conduct Under Guideline J
Consideration of Evidence Presumption in Security Clearance Cases
Application of Mitigating Conditions Under Guideline G

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 based on security concerns under Guideline J (Criminal Conduct) and Guideline G (Alcohol Consumption). The applicant raised several issues on appeal, including claims that the Government did not meet its burden of production and that the Judge failed to consider all evidence. The Board affirmed the Judge's decision, finding no harmful errors in the proceedings.

Appealed bythe applicant

Applicant representationAttorney

Judge belowNoreen A. Lynch — denied the clearance

Decided ona hearing

Guidelines belowGuideline JGuideline G

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant contended that the Government did not meet its burden of production regarding the 2009 incident.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge failed to consider all of the record evidence.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant claimed that the Judge erred in her application of the mitigating conditions.
Whole-person analysis — raised by the applicantRejected
Applicant asserted that the Judge's whole-person analysis was erroneous.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the Judge properly considered the record evidence and applied the relevant legal standards.

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

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; Guideline G DIGEST: Applicant’s admissions to the SOR and the evidence contained in the file establish Guideline J security concerns. Applicant failed to rebut the presumption that the Judge considered all of the record evidence. Adverse decision affirmed. CASE NO: 09-05995.a1 DATE: 02/10/2011 DATE: February 10, 2011 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-05995

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Gregg A. Cervi, Esq., Department Counsel FOR APPLICANT Conrad F. Mallek, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On February 24, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline J (Criminal Conduct) and Guideline G (Alcohol Consumption) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On October 27, 2010, after the hearing, Administrative Judge Noreen A. Lynch 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 the Government had failed to meet its burden of production; whether the Judge failed to consider all of the record evidence; whether the Judge erred in her application of the mitigating conditions; and whether the Judge’s whole- person analysis was erroneous. The Judge’s favorable findings under Guideline G are not at issue. Consistent with the following discussion, we affirm the decision of the Judge. The Judge made the following pertinent findings of fact: Applicant is an employee of a Defense contractor. He is engaged to be married and has no children. As a 17-year-old, Applicant drank beer on weekends. He would consume six to seven at a sitting and was intoxicated five to six times a month. He has never been diagnosed with an alcohol problem. In July 2005 Applicant attended a party where he consumed six to seven beers. Eighteen at the time, he was charged with under-age consumption of alcohol. He pled “no contest” and paid a fine. In August 2007, Applicant was at a bar with friends. As he was leaving, he felt threatened by some persons standing by his truck. He hit one of them over the head with a glass bottle. The person fell to the ground, and Applicant hit him a “couple more times.” Decision at 2. He was charged with aggravated assault with a deadly weapon. Police detected an odor of alcohol about Applicant. The person whom Applicant struck was hospitalized with injuries to his head and ear. As a consequence of this offense, Applicant was sentenced to community service, completion of an anger management class, and 36 months probation. The probation required him to pay restitution and not to consume alcohol. In March 2009, Applicant was charged with three counts of disorderly conduct and one of assault. At the time of incident, he was still on probation from the previous offense. He was at a bar, but he has denied consuming alcohol. He was involved in a fight. He has pled not guilty to the offense, and the case was ongoing at the close of the record. As a consequence of this incident, his probation was modified to include a prohibition against entering any bar or place that has the primary purpose of selling alcohol. Applicant enjoys an excellent reputation for the quality of his work, his trustworthiness, and his dedication to his family. Applicant contends that the Government did not meet its burden of production regarding the 2009 incident, in that he believes the evidence shows that he committed no offense. The Government is responsible for producing evidence to establish controverted SOR allegations. Directive ¶ E3.1.14. In this case, the SOR alleged that Applicant was “arrested in . . . March 2009 by the [County Police Department], and charged with three counts of disorderly conduct and one count of assault. This case is still pending.” Applicant admitted to this allegation in his Response to the SOR, dated April 4, 2010, with the exception that he was not arrested. Accordingly, this allegation was not controverted by Applicant. Nevertheless, the record contains a copy of the police report that described the incident. Although local prosecutorial authorities declined to treat the assault as a felony, the case was proceeding as a misdemeanor at the close of the record. Applicant’s admissions, along with the record evidence, are sufficient to demonstrate Guideline J security concerns, thereby shifting the burden of persuasion to Applicant. See Directive ¶ E3.1.15. Applicant contends that the Judge did not consider all of the record evidence. He states that the Judge did not consider a witness statement to the effect that Applicant did not participate in the March 2009 affray. He also states that the Judge did not consider evidence that his probation was not revoked following this incident. A Judge is presumed to have considered all the evidence in the record. See, e.g., ISCR Case No. 09-01735 at 2 (App. Bd. Aug. 31, 2010). The Judge’s decision acknowledges receipt of the witness statement, which was submitted after the hearing. There is nothing in the Judge’s findings or in her analysis to support a conclusion that she did not consider it. Furthermore, she made an explicit finding concerning the modification of Applicant’s probation. Applicant has not rebutted the presumption that the Judge considered all of the record evidence. The record supports a conclusion 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,’” both as to the mitigating conditions and the whole-person factors. 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 adverse decision is sustainable on this record. “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: 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