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ISCR Case 11-05027.a1 — CASE

ISCR Case 11-05027.a1denied

Case Headnote

ISCR Case No. 11-05027.a1

Nov 26, 2012· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance due to concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The denial stemmed from a significant criminal history and false statements made on his security clearance application.

The applicant's criminal record included multiple alcohol-related offenses and an assault charge. Additionally, the applicant provided false information on his security clearance application concerning both his employment history and his criminal record.

The judge determined that the applicant failed to demonstrate sufficient mitigation for these issues, primarily due to the recency of the misconduct. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

JraisedCriminal Conduct
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 issuedFeb 9, 2012
Answer filed—
Hearing heldSep 13, 2012
Decision dateNov 26, 2012

Cite For

Denial Based on Significant Criminal History Under Guideline J
False Statements on Security Clearance Application Under Guideline E
Presumption of Judicial Impartiality in Security Clearance Cases

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 Guideline J (Criminal Conduct) and Guideline E (Personal Conduct). The applicant argued that the Judge failed to consider all evidence and that the decision was arbitrary. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowArthur E. Marshall, Jr. — denied the clearance

Decided ona hearing

Guidelines belowGuideline JGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge failed to consider all of the record evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge considered all evidence and was unbiased, affirming the adverse decision based on substantial evidence and proper procedures.

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

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: Applicant failed to rebut the presumption that the Judge considered all of the evidence. Applicant failed to rebut the presumption that the Judge was unbiased. Adverse decision affirmed. CASE NO: 11-05027.a1 DATE: 11/26/2012 DATE: November 26, 2012 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-05027

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 February 9, 2012, 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 E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 13, 2012, after the hearing, Administrative Judge Arthur E. Marshall, Jr., 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 Judge failed to consider all of the record evidence and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: During his teenage years, and into his adult life, Applicant committed a series of criminal offenses, many involving alcohol. In addition to charges of operating a vehicle while under the influence of alcohol (OUI), Applicant was also charged, at various times, with assault, on one occasion a felony assault. As a result of his most recent OUI, Applicant was required by the court to attend an inpatient alcohol treatment program. Applicant has stopped drinking and his wife helps him maintain his sobriety. His family has provided him with stability. In completing his security clearance application (SCA), Applicant made some false statements. For example, he denied having been arrested; having been charged with a felony; or having been ordered to seek alcohol counseling or treatment. He also stated that he had been laid off from a job, denying that he had ever been fired or had ever left a job under unfavorable circumstances. Applicant contended that he had mis-read the questions about his police record or had forgotten about some of the incidents. However, he admitted to having knowingly provided a false answer to the question about his job termination, stating that he was embarrassed to have been fired.1 In the Analysis, the Judge found in Applicant’s favor under Guideline J for the alcohol and assault offenses, concluding that Applicant had made significant changes to his conduct, thereby demonstrating rehabilitation. However, he found against Applicant regarding a Guideline J allegation that he had falsified his SCA. Under Guideline E, the Judge concluded that Applicant had not intentionally falsified the SCA questions about his criminal history, accepting as credible Applicant’s explanations of having misread the questions, etc. However, the Judge stated that he could not enter a favorable finding regarding Applicant’s false statement about his job termination. Noting Applicant’s testimony that he had intentionally failed to provide correct information on this matter, the Judge concluded that Applicant had failed to demonstrate mitigation, given the relative recency of the misconduct.2 Applicant cites to record evidence of his military service and other things that he believes support his case for a clearance. A Judge is presumed to have considered all of the evidence in the record, and Applicant’s brief is not sufficient to have rebutted that presumption. See, e.g., ISCR Case No. ISCR Case No. 11-06622 at 4 (App. Bd. Jul. 2, 2012). Applicant requests that his case be remanded to a different Judge for a new decision. To the extent that he is arguing that the Judge in his case lacked impartiality, there is a presumption that a Judge is impartial. An applicant who contends that a Judge is biased against him has a heavy burden on appeal. See, e.g., ISCR Case No. 08-03798 at 2 (App. Bd. Jan. 21, 2010). Applicant has cited to nothing in the record to impugn the Judge’s impartiality. Applicant’s brief is not sufficient to rebut the presumption that the Judge was impartial. The record supports a conclusion that the Judge examined the relevant data and articulated a satisfactory explanation for the decision. 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). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

ORDER

The Judge’s 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

FOOTNOTES

1 Applicant testified that his employer had not permitted him to miss work in order to attend the court-ordered alcohol treatment and, when he had attended the program anyway, terminated his employment. “Q: So, he told you that you were fired? A: He says I have to let you go. Q: So when you wrote . . . that the reason for leaving is you were laid off from [employer], that was a false statement, is that right? A: Yes, yes it was. Q: Okay. And you wrote that you weren’t fired, that was also a false statement, is that right? A: Yes, I will agree on that. Q: Now, why did you lie on it? A: Because it is embarrassing to be fired.” Tr. at 58-59.

2 Although the Judge stated that Applicant did not intend to falsify the SCA concerning his police record, at the end of the Decision he entered formal findings against Applicant for all Guideline E allegations, including these. Reading the Decision as a whole, we believe that the Judge intended to clear Applicant on the Guideline E allegations regarding his police record. See, e.g., ISCR Case No. 08-01075 at 5 (App. Bd. Jul. 26, 2011)(To be a security concern, an error or omission on a SCA must be deliberately false). We conclude that his formal findings to the contrary are an inadvertent error. Given the Judge’s sustainable adverse finding concerning the job termination, the error in question is harmless.