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ISCR Case 11-12980.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date7/19/2013
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 11-12980.h1) →
Participants
Applicant Representation: Pro Se
Judge: Jeffrey D. Billett, Michael Y. Ra'anan, William S. Fields
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline FFinancial Considerations · For Applicant
- Guideline JCriminal Conduct · Against Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
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ISCR Case 11-12980.a1denied

Case Headnote

ISCR Case No. 11-12980.a1

Jul 19, 2013· 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), and Guideline J (Criminal Conduct). The denial stemmed primarily from a history of multiple misdemeanor charges spanning from 1987 to 2010, with a particular focus on criminal and personal conduct issues.

Disqualifying conditions included a pattern of criminal conduct and a history of financial irresponsibility. The judge noted that the applicant's offenses included alcohol-related incidents and that he had resumed alcohol consumption after a period of abstinence, leading to further charges. While some mitigating evidence was presented, specifically related to the applicant's efforts to address his issues, it was deemed insufficient to outweigh the security concerns raised by the extensive criminal history.

The judge concluded that the applicant's long-term pattern of offenses, particularly those involving alcohol, presented an unacceptable security risk. The appeal board subsequently affirmed the denial, finding that the judge's decision was not arbitrary or capricious, thereby upholding the initial denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 30raisedCriminal Conduct
AG ¶ 15raisedPersonal Conduct

Mitigating

AG ¶ 20rejectedMitigating ConditionsThe judge found that the mitigating evidence was insufficient to overcome the government's security concerns.

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 issuedSep 5, 2012
Answer filed—
Hearing heldApr 10, 2013
Decision dateJul 19, 2013

Cite For

Evaluation of Mitigating Evidence Under Guideline E and J
Impact of a History of Alcohol-related Offenses on Security Clearance Decisions
Standards for Weighing Evidence 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 was brought by the applicant after the denial of a security clearance based on concerns under Guideline J (Criminal Conduct) and Guideline E (Personal Conduct). The applicant argued that the Judge's decision was arbitrary and noted minor errors in findings. The Board affirmed the Judge's decision, finding no harmful error and that the Judge's conclusions were supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMark Harvey — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline EGuideline JGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge’s adverse decision is arbitrary, capricious or contrary to law.
Erroneous finding of fact — raised by the applicantRejected
Applicant notes several minor errors in the Judge’s findings.

Why the Board ruled this way

The Judge's adverse conclusions are sustainable based on substantial evidence, and the presence of mitigating evidence does not compel a favorable decision. The Judge reasonably weighed the evidence and articulated satisfactory explanations for his decision.

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
Jeffrey D. Billett
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 J; Guideline E DIGEST: The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. Adverse decision affirmed. CASENO: 11-12980.a1 DATE: 07/19/2013 DATE: July 19, 2013 In Re: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-12980

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On September 5, 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). The SOR was subsequently amended by Department Counsel adding allegations under Guideline F (Financial Considerations). Applicant requested a hearing. On April 10, 2013, after the close of the record, Defense Office of Hearings and Appeals Administrative Judge Mark Harvey denied Applicant’s request for a security clearance. Applicant timely 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 contends that the Judge’s adverse decision should be reversed because the criminal conduct at issue involved minor offenses which were not recent.1 Applicant also notes several minor errors in the Judge’s findings. However, none of the errors cited by Applicant are sufficient either individually or cumulatively to exert an effect on the outcome of the case, and the Judge’s material findings of security concern are based upon substantial record evidence. 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. 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. 12-11097 at 2 (App. Bd. Jun. 20, 2013). In this case, the Judge found that Applicant had been charged seven times with misdemeanor-level offenses between 1987 and 2010. Decision at 2-4. Although the Judge noted that Applicant’s 2010 offense was “not particularly recent,” he concluded that fact alone was not sufficient to mitigate the security concerns given the totality of the record before him. Id at 7-8. In that regard, the Judge noted that Applicant had multiple offenses over a relatively lengthy period of time, and alcohol had contributed to several of the offenses. In 2004, a DOHA Judge had continued Applicant’s security clearance and had noted Applicant’s abstinence from alcohol consumption prominently in his decision. Subsequent to that decision, Applicant had resumed the consumption of alcohol and committed two criminal offenses in the last five years. Id. at 8, 12. In light of the forgoing, the Judge’s adverse conclusions are sustainable. The Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. He found in favor of Applicant with respect to some of the 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. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for his decision. “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 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board

FOOTNOTES

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