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ISCR Case 10-06195.a1 — CASE

ISCR Case 10-06195.a1denied

Case Headnote

ISCR Case No. 10-06195.a1

Oct 4, 2011· Hon. Michael Y. Ra'anan· appeal

Summary

A defense contractor employee was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The denial stemmed from a hit-and-run incident where the applicant struck and injured a pedestrian but left the scene of the accident.

This action demonstrated a lack of integrity and trustworthiness, and the applicant failed to provide sufficient evidence to establish good judgment or reliability. The applicant's claims of due process violations during the proceedings were reviewed and found to have no merit.

Ultimately, the appeal board affirmed the adverse decision, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG JraisedCriminal Conduct
AG EraisedPersonal Conduct

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 issuedJan 21, 2011
Answer filed—Applicant requested a decision on the written record.
Hearing heldJul 29, 2011Decision made on the written record.
Decision dateOct 4, 2011Appeal affirmed.

Cite For

Affirmation of Adverse Decision Based on Hit-and-run Conduct Under Guideline J
Lack of Evidence for Good Judgment Under Guideline E
Rejection of Due Process Claims in Security Clearance Proceedings

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 security clearance based on criminal conduct and personal conduct. The Applicant argued he was denied due process and that the Judge's findings were unsupported. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDavid M. White — denied the clearance

Decided onthe written record

Guidelines belowGuideline JGuideline E

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant contended he was denied due process and that the Judge's findings were not supported by substantial evidence.

Why the Board ruled this way

The Board found no merit in the Applicant's claims regarding due process and substantial evidence, affirming the Judge's findings and conclusions based on the record evidence.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

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; Guideline E DIGEST: There is no merit to Applicant’s contention that he was limited to providing yes or no answers in his response to the government’s FORM, or that he was otherwise denied an opportunity to submit matters in his own behalf. Applicant also challenges the Judge’s finding that he left the scene of an accident. The record evidence supports the Judge’s finding on this matter. Adverse decision affirmed. CASE NO: 10-06195.a1 DATE: 10/04/2011 DATE: October 4, 2011 In Re: ------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-06195

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 January 21, 2011, DOHA issued a statement of reasons (SOR) advising Applicant

FOOTNOTES

1 The record shows that Applicant provided answers to DOHA interrogatories and to the SOR but that he did not respond to the File of Relevant Material (FORM). of the basis for that decision–security concerns raised under Guideline J (Criminal Conduct) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On July 29, 2011, after considering the record, 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 Applicant was denied due process; whether certain of the Judge’s findings were supported by substantial record evidence; whether the Judge erred in his application of the mitigating conditions; and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm the Judge’s decision. The Judge found that Applicant is an employee of a Defense contractor. Applicant previously worked for a state-licensed health care facility. During the course of this employment, in 2009, he was driving home from work and struck a pedestrian while turning a corner. Applicant left the scene of the accident without providing contact information and without rendering assistance. He was charged with hit-and-run, a felony. During his subsequent court appearance, pursuant to a plea agreement, Applicant pled nolo contendere to misdemeanor hit-and-run. The court sentenced him to three years probation, fines and fees totaling $160, 30 days community service, and restitution to the victim. Subsequently, the state department of social services ordered that Applicant be precluded from contacting clients and excluded from the licensed treatment facility due to his criminal offense. The Judge found that Applicant had “submitted no other evidence tending to establish good judgment, trustworthiness, or reliability.”1 The Judge also stated that he was unable to evaluate Applicant’s credibility, demeanor, or character in person, because Applicant had elected a decision on the written record. Decision at 3. In the Analysis, the Judge concluded that Applicant’s offense raised security concerns under Guidelines J and E. He also concluded that Applicant had failed to meet his burden of persuasion as to mitigation. In the whole-person analysis, he stated: Applicant is a mature, accountable adult who voluntarily left the scene of an accident after hitting a pedestrian with his car and causing her substantial injuries. There was no reason for him to have done so other than to avoid responsibility and accountability for his own conduct. This demonstrates a lack of the integrity and trustworthiness that are fundamental to eligibility for being entrusted with national security information and sensitive duties. Decision at 7. Applicant contends that he was not given a sufficient chance to present evidence in mitigation. He states that he received documents from DOHA that permitted only yes or no answers,

2 This document is included in Item 6, Applicant’s answers to interrogatories. It states in part that, on the date in question, Applicant “hit a pedestrian in the street while driving his vehicle and left the scene of the accident without obtaining the victim’s information or waiting for the police to arrive. As a factor in aggravation, [Applicant’s] statement is inconsistent with the police report regarding certain facts.” thereby denying him an opportunity to address his conduct in detail. The record demonstrates that Applicant’s copy of the FORM was accompanied by a letter advising him of his right to “submit any material you wish the Administrative Judge to consider or to make any objections you may have as to the information in the file.” Applicant returned a receipt for the FORM dated March 15, 2011. Applicant did not provide a response to the FORM. The record does contain Applicant’s answers to DOHA interrogatories. Attached to the record as Item 6, this exhibit includes, among other things, a written letter by Applicant addressing his criminal offense. There is no merit to Applicant’s contention that he was limited to providing yes or no answers or that he was otherwise denied an opportunity to submit matters in his own behalf. Applicant challenges the Judge’s finding that he left the scene of the accident. We review challenged findings to determine if they 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’s admissions to the SOR and other evidence, including a copy of the court record of the case history, a copy of the FBI record of Applicant’s conviction, and a copy of the pleading submitted by the state licensing division to the state department of social services,2 support the Judge’s finding on this matter. 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.’” 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: 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