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ISCR Case 09-07229.a1 — CASE

ISCR Case 09-07229.a1denied

Case Headnote

ISCR Case No. 09-07229.a1

Feb 15, 2011· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing himself, was denied a security clearance based on concerns under Guideline D (Sexual Behavior) and Guideline E (Personal Conduct). The judge determined that the applicant's mitigating evidence was insufficient to outweigh the serious nature of the disqualifying conduct.

Specifically, the applicant presented little to no evidence to explain, extenuate, or mitigate the security concerns raised under both guidelines. The judge concluded that the applicant failed to meet the burden of persuasion required for a favorable clearance decision.

The judge provided a reasonable explanation for why the submitted mitigating evidence was inadequate to overcome the government's security concerns, ultimately finding the denial justified and sustainable.

Conditions Referenced

Disqualifying

Guideline DraisedSexual Behavior
Guideline EraisedPersonal Conduct

Key Rule Quoted

“The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision.”

Procedural Posture

SOR issuedMar 24, 2010
Answer filed—Applicant requested decision on written record.
Hearing held—Decision made based on written record.
Decision dateFeb 15, 2011

Cite For

Insufficient Mitigating Evidence Under Guideline D and E
Burden of Persuasion for Security Clearance
Weighing of Evidence in Security Clearance Decisions

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 based on concerns under Guideline D (Sexual Behavior) and Guideline E (Personal Conduct). The applicant argued that the Judge's decision was arbitrary and capricious, citing mitigating factors. 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 belowRobert J. Tuider — denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline DGuideline E

What the Board reviewed

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

Why the Board ruled this way

The Board found that the Judge properly weighed the evidence and articulated a satisfactory explanation for his decision, concluding that the unfavorable security clearance decision was sustainable.

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
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 D; Guideline E DIGEST: The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. CASENO: 09-07229.a1 DATE: 02/15/2011 DATE: February 15, 2011 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-07229

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 March 24, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline D (Sexual Behavior) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested that the case be decided on the written record. On November 19, 2010, after considering the record, Administrative Judge Robert J. Tuider denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse clearance decision is arbitrary, capricious or contrary to law. Applicant argues that the Judge mis-weighed the evidence and that his adverse decision should be reversed. In support of his argument, Applicant asserts: 1) his sexual misconduct was not lengthy, 2) it occurred over five years ago, 3) he did not try to hide the misconduct, 4) he is not subject to coercion, and 5) he has held a clearance without incident since 1986. Applicant’s arguments do not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. 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. See, e.g., ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007). 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. 06-17409 at 3 (App. Bd. Oct. 12, 2007). In his decision, the Judge noted that Applicant had elected to have his case decided on the written record in lieu of a hearing and had “ . . . presented little or no evidence to explain, extenuate, or mitigate the sexual behavior and personal conduct security concerns.” Decision at 7. As a result, he concluded that Applicant had failed to meet his ultimate burden of persuasion to obtain a favorable clearance decision. Id. The Judge weighed the limited mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. His analysis included consideration of the circumstances referenced in Applicant’s appeal brief. Decision at 2, 3, 6 and 7. He found in favor of Applicant with respect to two of the SOR factual allegations, but reasonably explained why the mitigating evidence was insufficient to overcome all of the government’s security concerns. The Board does not review a case de novo. After reviewing the record, the Board concludes that 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). Therefore, the Judge’s unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board