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ISCR Case 11-02320.a1 — CASE

ISCR Case 11-02320.a1denied

Case Headnote

ISCR Case No. 11-02320.a1

May 25, 2012· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing himself, was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline F (Financial Considerations), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct). The denial was affirmed on appeal, with the board concluding that the judge's decision was rational and consistent with national security interests.

Key disqualifying conditions included multiple instances of domestic violence, which resulted in criminal convictions. Two of these domestic violence incidents were linked to alcohol consumption, and the applicant remained on probation until 2013.

The judge determined that the applicant's presented mitigating evidence was insufficient to outweigh these significant disqualifying factors. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 19raisedCriminal Conduct
AG ¶ 16raisedAlcohol Consumption
AG ¶ 15raisedPersonal Conduct
AG ¶ 20raisedFinancial Considerations

Key Rule Quoted

“The effect an adverse decision may have on an applicant is not a material consideration in evaluating his or her security eligibility.”

Procedural Posture

SOR issuedJul 5, 2011
Answer filed—
Hearing heldFeb 29, 2012
Decision dateMay 25, 2012

Cite For

Evaluation of Multiple Disqualifying Conditions Under Guidelines E, F, G, and J
The Irrelevance of the Adverse Impact of a Decision on the Applicant's Employment
The Standard for Weighing Mitigating Evidence Against Disqualifying Factors

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 multiple guidelines, including financial considerations and personal conduct. The applicant argued that the Judge's decision was arbitrary and did not adequately consider his mitigating evidence. The Board affirmed the Judge's decision, finding no harmful error in the evaluation of the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMatthew E. Malone — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline EGuideline GGuideline J

What the Board reviewed

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

Why the Board ruled this way

The Board concluded that the Judge examined the relevant data and articulated a satisfactory explanation for his decision, with a rational connection between the facts found and the choice made. The Judge's unfavorable security clearance decision is sustainable.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
Jean E. Smallin

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 F DIGEST: The effect an adverse decision may have on an applicant is not a material consideration in evaluating his or her security eligibility. Adverse decision affirmed. CASENO: 11-02320.a1 DATE: 05/25/2012 DATE: May 25, 2012 In Re: ----------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-02320

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 July 5, 2011, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 9, 2011, the SOR was amended to include security concerns under Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct). On February 29, 2012, after the hearing, Administrative Judge Matthew E. Malone 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 decision is arbitrary, capricious or contrary to law. Specifically, Applicant points to his truthfulness, his job performance, and his military record. He contends that the Judge should have accorded greater weight to his evidence of mitigation.1 The Judge found that between 2002 and 2010, Applicant had several instances of domestic violence involving his wife or son. Three of the incidents resulted in criminal convictions. Two of the events involved alcohol consumption. Applicant is on probation until 2013. In support of his appeal, Applicant made statements which constitute new evidence. The Board cannot consider new evidence. See Directive, ¶ E3.l.29. See also ISCR Case No. 08-06875 at 2 (App. Bd. Oct. 29, 2009). Applicant contends that the Judge’s decision is arbitrary, capricious, or contrary to law, arguing that the Judge did not consider or did not give adequate weight to his truthfulness, his job performance, and his military record. Applicant also maintains that the Judge should have accorded greater weight to his explanations for his criminal record. There is a rebuttable presumption that the Judge considered all the record evidence, unless the Judge specifically states otherwise, and there is no requirement that the Judge mention or discuss every piece of record evidence when reaching a decision. See, e.g., ISCR Case No. 09-01520 at 3 (App. Bd. Jan. 24, 2011). In this case, the Judge mentioned Applicant’s military record. The application of disqualifying and mitigating conditions and whole-person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance determination. 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 that 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. 06-23384 at 3 (App. Bd. Nov. 23, 2007). Applicant states that loss of his job due to denial of a security clearance will have an adverse impact on him and on his employer. However, the effect that an adverse decision may have on an applicant is not a relevant or material consideration in evaluating his or her security eligibility. See, e.g.,ISCR Case No. 08-07528 at 2 (App. Bd. Dec. 29, 2009). After reviewing the record as a whole, 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). Accordingly, the Judge’s ultimate unfavorable security clearance decision is sustainable.

ORDER

The Judge’s decision denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board

FOOTNOTES

1 The Judge’s favorable findings under Guideline F are not at issue on appeal.