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ISCR Case 17-00709.a1 — CASE

ISCR Case 17-00709.a1denied

Case Headnote

ISCR Case No. 17-00709.a1

Jun 28, 2018· Hon. Charles C. Hale· appeal

Summary

A 34-year-old defense contractor employee was denied a security clearance based on Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The denial stemmed from a 2014 arrest for child cruelty and subsequent alleged false statements made during the background investigation.

The appeal board affirmed the denial, citing substantial evidence of the child cruelty arrest. Disqualifying conditions under Adjudicative Guidelines Paragraphs 30 and 15 were raised. The board found the applicant's denial of culpability for the 2014 arrest raised significant doubts about her reliability and trustworthiness.

Furthermore, the applicant's claims of misunderstanding the background investigation questions were deemed not credible. The board concluded there was substantial evidence to support the denial, primarily due to the criminal conduct and the applicant's lack of credibility regarding her statements during the investigation.

Conditions Referenced

Disqualifying

AG ¶ 30raisedCriminal Conduct
AG ¶ 15raisedPersonal 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 issuedJun 2, 2017
Answer filed—
Hearing heldMar 20, 2018
Decision dateJun 28, 2018

Cite For

Substantial Evidence Supporting Arrest for Child Cruelty Under Guideline J
Credibility Issues Related to False Statements Under Guideline E
Affirmation of Denial Based on National Security Interests

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 personal conduct. The Applicant argued that the Judge erred in finding she was arrested for child cruelty in 2014 and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding substantial evidence supported the findings and no harmful error was identified.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowStephanie C. Hess — denied the clearance

Decided onthe written record

Guidelines belowGuideline EGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contends the Judge erred in finding that she was arrested for the child cruelty charge in 2014.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argues that the Judge's adverse decision was arbitrary, capricious, or contrary to law.
No specific harmful error alleged — raised by the applicantRejected
Applicant failed to identify any harmful error.

Why the Board ruled this way

The Judge's findings were supported by substantial evidence, and the Applicant failed to demonstrate any harmful error in the decision.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

James E. Moody
Charles C. Hale
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 E; Guideline J DIGEST: Applicant contends the Judge erred in finding that she was arrested for the child cruelty charge in 2014. In support of this claim, she submitted a Detention Certificate that post- dates the Judge’s decision. This Detention Certificate constitutes new evidence that the Appeal Board cannot consider. We note that, in her security clearance application, Applicant disclosed that she “was arrested” for the 2014 incident, and a police record also reflects she was arrested on that occasion. The Judge’s finding that Applicant was arrested for the child cruelty charge in 2014 is supported by substantial evidence. Adverse decision affirmed. CASENO: 17-00709.a1 DATE: 06/28/2018 DATE: June 28, 2018 In Re: -------------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 17-00709

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 June 2, 2017, 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 E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On March 20, 2018, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Stephanie C. Hess 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 her findings of fact and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant is a 34-year-old employee of a defense contractor. In 2011, child protective services (CPS) took custody of Applicant’s two children after daycare workers observed a visible hand print on one child’s arm. The children were placed in foster care. The police questioned Applicant, and she was referred to CPS for counseling. Noncompliance with the counseling program could have resulted in loss of custody of the children. Applicant completed the required counseling. In 2014, daycare providers contacted the police because they suspected one of Applicant’s children had been abused. An investigation led to Applicant being arrested and charged with felony child cruelty. She was arraigned and released from jail. Police reports reflected that Applicant grabbed one child by the neck, threw her to the floor, and punched her. Due to this incident, Applicant was separated from her children for about two months. She and her husband were required to attend child-abuse-perpetrator classes, which she completed. In early 2016, she checked on the status of her criminal case at the county courthouse and was given a document that stated, “no cases or charges found.” Decision at 3. She never received a notice that her case was dismissed and provided no documentation as to the status of the charge. Applicant denies making a false statement during a background investigation. She told the investigator that she spanked her child three times the day before her arrest and denied ever having made a statement about punching her child. She also denied falsifying her security clearance application (SCA) in 2014 when she responded “No” to the question that asked if, in the past seven years, she consulted with a healthcare professional regarding an emotional or mental health condition. She claimed that she did not list the CPS-ordered counseling because she did not understand the question. The Judge’s Analysis In 2011, Applicant’s children were removed from the home due to her suspected child abuse. In 2014, she abused one of her children and was arrested and charged with felony child cruelty. Applicant’s denial of culpability for these alleged incidents casts doubt on her reliability, trustworthiness, and good judgment. Applicant denies the falsification allegations, and the mere omission of information does not prove a falsification. Applicant’s claim that she never described the 2014 incident as she is reported to have stated in two police reports is simply not plausible. The Judge concluded that she intentionally falsified her statement to the background investigator about that incident. The Judge found in favor of Applicant on two allegations that she falsified her SCA by failing to disclose mandated counseling because no evidence established that it was for an emotional or mental health condition.

DISCUSSION

Applicant contends the Judge erred in finding that she was arrested for the child cruelty charge in 2014. In support of this claim, she submitted a Detention Certificate that post-dates the Judge’s decision. This Detention Certificate constitutes new evidence that the Appeal Board cannot consider. Directive ¶ E3.1.29. We note that, in her security clearance application, Applicant disclosed that she “was arrested” for the 2014 incident, and a police record also reflects she was arrested on that occasion. Items 3 and 4 of the File of Relevant Material. The Judge’s finding that Applicant was arrested for the child cruelty charge in 2014 is supported by substantial evidence, i.e., “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” Directive ¶ E3.1.32.1. See, e.g., ISCR Case No. 16-04094 at 2 (App. Bd. Apr. 20, 2018). Applicant also challenges the Judge’s findings regarding the alleged SCA falsifications. She argues that she did not understand the question. However, we need not address that assignment of error because the Judge found in favor of Applicant on those allegations. The balance of Applicant’s arguments amount to a disagreement with the Judge’s weighing of the evidence. For example, she contends that the Judge was mistaken about her not being remorseful. These arguments fail to establish that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR 17-00257 at 3 (App. Bd. Dec.7, 2017). 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, 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.”

ORDER

The Decision is AFFIRMED. Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board