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ISCR Case 15-01099.a1 — CASE

ISCR Case 15-01099.a1denied

Case Headnote

ISCR Case No. 15-01099.a1

Dec 15, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A 57-year-old federal contractor employee was denied a security clearance due to concerns under Guideline J (Criminal Conduct) and Guideline F (Financial Considerations). The denial stemmed from a conviction for conspiracy to commit wire fraud, which resulted in a prison sentence and restitution obligations.

The applicant's criminal conduct was considered serious and recent, with probation concluding in 2016. Disqualifying conditions AG J1 (allegations or admission of criminal conduct) and AG F3 (failure to meet financial obligations) were specifically raised.

The applicant's appeal was denied, as the judge found no harmful error in the initial decision. Arguments regarding timely restitution payments did not overcome the presumption that all evidence was considered. The denial was upheld, emphasizing the gravity of the applicant's criminal history and ongoing financial responsibilities.

Conditions Referenced

Disqualifying

AG J1raisedCriminal Conduct
AG F3raisedInability to Satisfy Debts

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 issuedAug 28, 2015
Answer filed—
Hearing heldSep 21, 2016
Decision dateDec 15, 2016

Cite For

Denial of Security Clearance Due to Serious Criminal Conduct Under Guideline J
Financial Obligations Impacting Security Clearance Under Guideline F
Affirmation of Adverse Decisions Based on Lack of Harmful Error in the Record

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 F (Financial Considerations). The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful error and that the Judge's conclusions were supported by the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJuan J. Rivera — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline J

What the Board reviewed

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.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the applicant failed to identify any harmful error that would warrant a reversal.

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 Ra’anan — Chair
Catherine M. Engstrom
James F. Duffy

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: Statements by the investigator in an interview summary are not the interviewer’s opinion. They reflect the answers given to the interviewer’s questions. Furthermore, even if they did reflect the interviewer’s opinion, that would not bind DoD. Adverse decision affirmed. CASENO: 15-01099.a1 DATE: 12/15/2016 DATE: December 15, 2016 In Re: --------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-01099

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 August 28, 2015, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline J (Criminal Conduct), and Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 21, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Juan J. Rivera denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. Applicant is a 57-year-old employee of a Federal contractor. He was hired by his current employer in 2013. In November 2009, he was convicted in a U.S. District Court of conspiracy to commit wire fraud. The criminal charge reflected that he conspired with others to knowingly, and with the intent to defraud, make materially false statements over the telephone to individuals interested in becoming investors in a company. He was sentenced to 42 months imprisonment and served 32 months until December 2012. After his release, he was placed on supervised probation until April 2016. He is jointly and severally liable with his co-accused to pay over $1,200,000 in restitution. He is required to pay ten percent of his gross income toward the restitution debt. He has been making those payments and maintaining his financial responsibility. In his appeal brief, Applicant contends that the Judge erred in finding that his criminal conduct occurred from 2003 through 2009. The criminal charge supports Applicant’s claim that his criminal conduct occurred during a much shorter period, i.e., from about 2003 to about September 2005. However, considering the nature and seriousness of Applicant’s criminal conduct and that his probation ended in 2016, we find that the Judge’s error was harmless in that it is not likely to have affected the outcome of the decision. See, e.g., ISCR Case No. 08-07528 at 2 (Dec. 29, 2009).

Applicant argues that he has always been on time with his scheduled restitution payments. He further contends the Government could garnish his wages if he did not make the payments, and there is no reason to believe that the financial restitution could ever be used to coerce or influence him. In the decision, the Judge noted that Applicant has been making his required restitution payments. Applicant’s arguments are not enough to rebut the presumption that the Judge considered all of the evidence in the record, nor are they sufficient to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-01284 at 3 (App. Bd. Apr. 6, 2015). Applicant further argues that the background investigator reported that there was nothing in Applicant’s background, lifestyle, or association, to include his offense and incarceration, that could be used for blackmail or coercion. As the Appeal Board has previously noted, such statements in a clearance interview summary represent the applicant’s answers to the interviewer’s questions, not the interviewer’s opinion as to the applicant’s worthiness for a clearance. In any event, even if an investigator provided such an opinion, it would not bind the DoD in its evaluation of an applicant’s case. See, e.g., ISCR Case No. 14-03069 at 3 (App. Bd. Jul. 30, 2015). Applicant has failed to identify any harmful error. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on the 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 Decision is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Catherine Engstrom Catherine M. Engstrom Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board