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ISCR Case 12-01698.a1 — CASE

ISCR Case 12-01698.a1unknown

Case Headnote

ISCR Case No. 12-01698.a1

Jun 13, 2014· Hon. Jeffrey D. Billett· appeal

Summary

This case involves a married former military police officer whose security clearance was denied due to concerns under Guideline D (Sexual Behavior), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct). The applicant engaged in sexual relations with a minor, resulting in a conviction for simple assault. This conduct raised significant questions about the applicant's judgment and reliability, which the appeal board determined had serious national security implications.

The appeal board reversed an initial favorable decision, finding that the judge's conclusions were not supported by the evidence. Specifically, the board noted that the applicant's conduct was inconsistent with his claims of naivete and responsibility. The board also highlighted concerns regarding the applicant's probation status and the broader implications of his actions.

Ultimately, the appeal board found that the disqualifying conditions, including AG ¶ 16(e), AG ¶ 14, and AG ¶ 15, were not mitigated. Therefore, no security clearance was granted.

Conditions Referenced

Disqualifying

AG ¶ 16(e)raisedPersonal ConductThe applicant's sexual relations with a friend's minor child raised questions about his judgment and reliability.
AG ¶ 14raisedCriminal ConductThe applicant's conviction for simple assault indicated a lack of judgment.
AG ¶ 15raisedSexual BehaviorThe applicant's sexual conduct with a minor violated state law.

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedSep 19, 2013
Answer filed—
Hearing heldFeb 28, 2014
Decision dateJun 13, 2014Appeal board decision reversed the initial favorable ruling.

Cite For

Reversal of Favorable Decision Due to Serious Concerns About Sexual Conduct with a Minor
Impact of Criminal Conduct on Security Clearance Eligibility
Insufficient Mitigation of Disqualifying Conditions Under Guidelines D, E, and J

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

Reversed

The appeal involved a security clearance denial based on the applicant's sexual relations with a minor. The Administrative Judge initially granted the clearance, but the Department Counsel appealed, arguing that the Judge erred in applying mitigating conditions and that the decision was unsupported by evidence. The Appeal Board reversed the decision, finding that the Judge's conclusions were not supported by the record and failed to adequately address the concerns raised by the applicant's conduct.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowWilford H. Ross — granted the clearance

Decided ona hearing

Guidelines belowGuideline DGuideline JGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the Government (Department Counsel)Error sustained
The Judge erred in his application of the mitigating conditions and the favorable decision is unsupported by the weight of the record evidence.
Decision arbitrary, capricious, or contrary to law — raised by the Government (Department Counsel)Error sustained
The Judge's decision runs contrary to the weight of the record evidence and fails to consider important aspects of the case.

Why the Board ruled this way

The Board found that the Judge's favorable analysis contravened the weight of the record evidence and failed to consider important aspects of the case, leading to a reversal of the decision.

Ignored material evidenceNo rational connection between facts and conclusion

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decision

Appeal Board panel

Michael Ra’anan — Chair
Jeffrey D. Billett
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 D; Guideline J; Guideline E DIGEST: Applicant, a married man, engaged in sexual relations with a minor whose parents were his friends. Favorable decision reversed. CASENO: 12-01698.a1 DATE: 06/13/2014 DATE: June 13, 2014 In Re: -----------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-01698

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Jeff Nagel, Esq., Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On September 19, 2013, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline D (Sexual Behavior), 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 February 28, 2014, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Wilford H. Ross granted Applicant’s request for a security clearance. Department Counsel appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issues on appeal: whether the Judge erred in his application of the mitigating conditions and whether the Judge’s favorable decision is unsupported by the weight of the record evidence. Consistent with the following, we reverse. The Judge’s Findings of Fact In 2010, Applicant engaged in a single act of consensual intercourse with a young woman (YW) not his wife, believing her to be over 18 years of age. In fact, she was about 17 1/2 years old. His conduct violated a state law prohibiting sexual intercourse with someone under 18 years of age and more than three years younger than the adult involved. YW notified her parents, who, in turn, called the police. After a pretext phone call, in which Applicant admitted to consensual sex with YW, the police arrested him. Applicant informed his wife of the offense. She notified Applicant’s place of employment. Applicant’s family friends, and fellow church members are aware of his misconduct with YW. Applicant ultimately pled guilty to simple assault, his sentence consisting of a 90 day suspended term of confinement, 36 months of probation, a fine, and no contact with YW. Applicant remained on probation as of the close of the record. Applicant is a former military police officer, who is contrite and apologetic about the incident. He testified as to his shame and concern upon being arrested and his fear of losing his family. Applicant and his wife attended counseling, which has helped them get through this crisis. Applicant was promoted at work, despite his employer’s knowledge of the offense. He enjoys an excellent reputation for his duty performance, honesty, and trustworthiness. The Judge’s Analysis The Judge concluded that Applicant’s conduct was mitigated under all three Guidelines. He cited to evidence that the offense in question occurred over three years ago, that Applicant was convicted only of simple assault, and that he has expressed remorse and a credible promise to refrain from such conduct in the future. The Judge stated that Applicant is not subject to coercion because his family, friends, and employer are all aware of the offense. The Judge noted evidence that this incident is isolated. He also stated that Applicant’s remaining on probation was not sufficient to outweigh the positive evidence in the record. Regarding Guideline E, the Judge stated that Applicant’s conduct reflected poor judgment, but that he had accepted the consequences of his misconduct. The Judge cited to evidence of Applicant’s good duty performance.

DISCUSSION

The standard applicable in security clearance decisions “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). “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Directive, Enclosure 2 ¶ 2(b). In deciding whether the Judge's rulings or conclusions are erroneous, the Board will review the Judge's decision to determine whether: it does not examine relevant evidence; it fails to articulate a satisfactory explanation for its conclusions, including a rational connection between the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference of opinion. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). Department Counsel argues that the Judge’s favorable analysis contravened the weight of the record evidence. We find this persuasive, noting the Judge’s findings and record evidence that show the following: a. Applicant engaged in sexual relations with the minor daughter of his friends, having invited the daughter to his trailer at a campsite. b. Applicant had a history of engaging in playful and/or flirtatious behavior with YW, despite his wife’s warnings about the propriety of such conduct. c. At the time of the security-significant conduct, Applicant was a man approaching middle-age, married with several children, which is not totally consistent with his claims of naivete in his interactions with YW. d. Throughout his presentation Applicant depicted YW as the aggressor and himself as unaware of her intentions, despite his wife’s warnings, until the day in question, which a reasonable person could find to be self-serving and inconsistent with his claim to have taken responsibility for his actions.1 e. Based upon this incident, Applicant was convicted of assault and at the close of the record he remained on probation. As Department Counsel notes, the Judge’s treatment of Applicant’s probationary status is conclusory, unsupported by analysis or by record evidence. This evidence undercuts the Judge’s favorable decision, in that it highlights aspects of the case that put Applicant’s conduct in a less favorable light than the Judge found. It also emphasizes aspects of the case that could prompt a reasonable person to question the credibility of Applicant’s claims to have demonstrated rehabilitation. Viewed as a whole, the record does not support a conclusion that Applicant has mitigated the Guideline J concerns consistent with the standard set forth in Egan. The Judge’s favorable findings under this Guideline are not sustainable. See, e.g., ISCR Case No. 07-17559 (App. Bd. Dec. 19, 2008). Department Counsel argues that the Judge erred in concluding that Directive, Enclosure 2 ¶ 16(e)2 was the only disqualifying condition raised by Applicant’s conduct. Again, we find this argument persuasive. While an applicant’s sexual relations with a friend’s minor child may indeed subject an applicant to the possibility of manipulation or duress, that does not exhaust the concerns that might arise under Guideline E. As with the other Guidelines, the disqualifying conditions listed for Guideline E are illustrative only, not exhaustive and exclusive. See, e.g., ISCR Case No. 07- 00852 at 4 (App. Bd. May 27, 2008). The Guideline addresses conduct that shows, among other things, a lack of judgment, raising questions about an applicant’s reliability, trustworthiness, and ability to protect classified information. Directive, Enclosure 2 ¶ 15. Under the facts of this case, Applicant’s having engaged in sexual relations with a minor whose parents were his friends and while he himself was a married man raises a significant question about his judgment, a concern that is not mitigated simply by showing that Applicant is not likely to be blackmailed on account of his misconduct. The Judge’s treatment of Guideline E did not fully address the concerns raised by this Guideline and is not sustainable. The Judge’s decision runs contrary to the weight of the record evidence and fails to consider important aspects of the case. The Judge’s decision is not sustainable under the Egan standard. Given this holding, we need not discuss the Judge’s favorable findings under Guideline D.

ORDER

The Decision is REVERSED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board

FOOTNOTES

1 We also note Applicant’s testimony that he had known the family for eight years (Tr. at 55), that YW was a problem child (Tr. at 56), and that YW was a high school dropout (Tr. at 56).

2 “[P]ersonal conduct . . . that creates a vulnerability to exploitation, manipulation, or duress, such as (1) engaging in activities which, if known, may affect the person’s personal, professional, or community standing[.]”