CASEClearance Adjudication Search EngineCASE

Loading case…

ISCR Case 16-02884.a1 — CASE

ISCR Case 16-02884.a1denied

Case Headnote

ISCR Case No. 16-02884.a1

Jan 26, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A former military officer was denied a security clearance under Guideline D (Sexual Behavior) and Guideline J (Criminal Conduct) due to a prior rape conviction. This conviction, which was issued by a general court-martial, had been upheld by military appellate authorities.

The denial was based on the applicant's continued denial of guilt regarding the conviction, which undermined claims of rehabilitation and trustworthiness. Furthermore, there was no evidence presented that the applicant had completed a treatment plan or was currently enrolled in one.

Ultimately, the judge found insufficient evidence of rehabilitation, concluding that the applicant did not demonstrate the reliability and trustworthiness required for a security clearance.

Conditions Referenced

Disqualifying

AG ¶ 15raisedCriminal Conduct
AG ¶ 24raisedSexual Behavior

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 issuedOct 3, 2016
Answer filed—
Hearing heldOct 19, 2017
Decision dateJan 26, 2018

Cite For

Insufficient Evidence of Rehabilitation Under Guideline D
Impact of Criminal Conviction on Security Clearance Eligibility
Importance of Accepting Responsibility for Past Conduct in Clearance Determinations

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 a denial of a security clearance based on criminal conduct and sexual behavior. The Applicant challenged the Judge's mitigation and whole-person analyses. The Board affirmed the decision, finding no harmful error in the Judge's treatment of the case and substantial evidence supporting the denial.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRobert E. Coacher — denied the clearance

Decided ona hearing

Guidelines belowGuideline JGuideline D

What the Board reviewed

Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argued that the Judge erred in his mitigation analysis.
Whole-person analysis — raised by the applicantRejected
Applicant contended that the Judge's whole-person analysis was erroneous.

Why the Board ruled this way

The Board found no error in the Judge's treatment of the Government's motion to preclude re-litigating the Applicant's general court-martial conviction. The Judge's conclusions were supported by substantial evidence and complied with the required 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 Ra’anan — Chair
James E. Moody
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 D DIGEST: The Judge granted a Government motion to preclude re-litigating Applicant’s general court-martial conviction under the doctrine of collateral estoppel. We find no error in the Judge’s treatment of this motion. Adverse decision affirmed. CASE NO: 16-02884.a1 DATE: 01/26/2018 DATE: January 26, 2018 In Re: ------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-02884

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 October 3, 2016, 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 D (Sexual Behavior) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On October 19, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Robert E. Coacher 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 erred in his mitigation analysis and whether the Judge’s whole-person analysis was erroneous. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant served on active duty with the U.S. military from 1996 until 2014. He has worked for a Defense contractor since 2015. While in the military, Applicant, an O-5 at the time, was charged with rape of an enlisted subordinate based upon events that occurred in 2005. Applicant was tried by a general court-martial in 2014 and, despite his plea of not guilty, was convicted of rape. The sentence consisted of a dismissal from the service, five months confinement, and a reprimand. Applicant’s conviction and sentence were upheld by military appellate authorities. At his DOHA hearing, Applicant admitted that he had had sexual intercourse with the victim, thereby committing adultery (Applicant was married at the time of the offense) and fraternization. A clinical psychologist submitted a report stating that Applicant had an “excellent prognosis for avoiding further sexual offenses.” Decision at 3. Applicant enjoys an excellent reputation for his leadership and for his professional skill while in the military. His character references recommend that he receive a clearance. Two of the references aver that Applicant’s offense was a one-time mistake. The Judge’s Analysis In his mitigation analysis, the Judge relied on Applicant’s continued denial of having committed rape, insofar as he contended that the sexual act between himself and his subordinate was with her consent. The Judge noted Applicant’s claims to have been rehabilitated, but he concluded that Applicant had not accepted responsibility for his offense. He stated that Applicant had made some strides toward rehabilitating himself but that the criminal conduct at issue casts doubt upon his current reliability, trustworthiness, and good judgment. He also noted that there is no evidence that Applicant had completed a treatment plan during or after his confinement or that he is currently enrolled in such a program. In the whole-person analysis, the Judge cited to Applicant’s character references, his psychological evaluation, and his personal circumstances. Given Applicant’s conviction for rape, however, the Judge concluded that Applicant had failed to provide sufficient evidence of rehabilitation.

DISCUSSION

Some of Applicant’s assertions constitute new evidence, which we cannot consider. Directive ¶ E3.1.29. Applicant challenges the Judge’s mitigation analysis. Specifically, he denies that he committed rape, contending that the sexual intercourse in question was with his subordinate’s consent. He states that there is nothing further that he can do to show that he has been rehabilitated and, among other things, cites to the report by his psychologist. He also contends that there were no opportunities for counseling while he was in confinement for someone such as himself whose sentence did not include a requirement for counseling. We have considered Applicant’s arguments in light of the record as a whole. The Judge granted a Government motion to preclude re-litigating Applicant’s general court-martial conviction under the doctrine of collateral estoppel. Decision at 2; Tr. at 22-23. We find no error in the Judge’s treatment of this motion.1 Even without reference to collateral estoppel, the record contains substantial evidence of Applicant’s guilt of the charged offense. That evidence includes the factual sufficiency analysis contained in the decision by the military court of criminal appeals, which includes a detailed transcription of a pretext phone call between Applicant and the victim,2 and Applicant’s various statements in his clearance interview and SOR Response that admit many of the significant facts and circumstances underlying the offense. We see no reason to disturb the Judge’s conclusion that Applicant’s denials of judicially established guilt impair his effort to show rehabilitation. Applicant’s challenge to the Judge’s whole-person analysis cites to his favorable evidence, including his military record, his letters of recommendation, the psychological report, etc. He argues that the acts underlying the conviction were based upon the events of a single evening and that his conduct since the incident shows him to be a person who can safeguard classified information. Applicant’s argument constitutes a challenge to the Judge’s weighing the evidence. However, an ability to argue for a different interpretation of the evidence is not enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., 15- 07062 at 2 (App. Bd. Nov. 21, 2017). Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 16-03219 at 2 (App. Bd. Nov.15, 2017). We conclude that the Judge’s whole person analysis complies with the requirements of Directive ¶ 6.3, in that the Judge considered the totality of the evidence in reaching his decision. See, e.g., ISCR Case No. 14-06653 at 3 (App. Bd. Nov. 18, 2016). The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The 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, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

FOOTNOTES

1 To the extent that Applicant’s argument presupposes a challenge to this ruling, we conclude that the Judge satisfied the requirements for collateral estoppel. See, e.g., ISCR Case No. 11-09245 at 3 (App. Bd. Jul. 8, 2014) (Applicant had an opportunity to litigate the earlier case and, in fact, did litigate the question of his guilt; the issues in the DOHA hearing are the same as those in the court-martial; and the application of the doctrine does not result in unfairness). On the question of unfairness, the Judge permitted Applicant to introduce evidence of his good character while in the military and afterward. Tr. at 22. He did not permit Applicant to attack the veracity of the victim, as that was already fully litigated at the court-martial. Tr. at 23.

2 Applicant acknowledged the crime and the context in which it occurred. He expressed remorse for committing the crime. Pretext Phone Call, cited in Appellate Decision and included in HE I. (emphasis added) Order The Decision is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board