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ISCR Case 17-01472.a1 — CASE

ISCR Case 17-01472.a1denied

Case Headnote

ISCR Case No. 17-01472.a1

Aug 6, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied clearance under Guideline J (Criminal Conduct) and Guideline E (Personal Conduct). The denial stemmed primarily from a history of criminal charges, specifically assault and battery, and a violation of a protective order. These incidents were considered significant disqualifying conditions under J1 and E2.

The applicant appealed the decision, but the appeal board affirmed the denial. The board found that the applicant's arguments failed to demonstrate that the initial judge's decision was arbitrary, capricious, or contrary to law. Furthermore, the board concluded that an insufficient amount of time had elapsed since the criminal conduct to mitigate the security concerns it raised.

Ultimately, the denial was upheld because the applicant's criminal history remained a significant concern, and his arguments did not effectively rebut the presumption that the judge had thoroughly considered all evidence in the record.

Conditions Referenced

Disqualifying

J1raisedCriminal Conduct
E2raisedPersonal 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 28, 2017
Answer filed—
Hearing heldApr 12, 2018
Decision dateAug 6, 2018

Cite For

Affirmation of Denial Based on Criminal Conduct Under Guideline J
Insufficient Mitigation of Personal Conduct Issues Under Guideline E
Standards for Evaluating the Weight of 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 involved an applicant seeking a security clearance after being denied due to concerns under Guideline E and Guideline J. The applicant argued that the Judge's decision was arbitrary and did not properly weigh character references. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowBraden M. Murphy — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's 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's arguments did not demonstrate that the Judge acted arbitrarily or capriciously. The Board affirmed the adverse decision based on the evidence presented.

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
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 cites to his character references, which he believes that the Judge either did not consider or to which the Judge failed to extend the proper weight. 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. Adverse decision affirmed. CASENO: 17-01472.a1 DATE: 08/06/2018 DATE: August 6, 2018 In Re: ------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 17-01472

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 28, 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 hearing. On April 12, 2018, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Braden M. Murphy 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’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant has worked in the Defense industry for many years and for his current employer since 2015. He was most recently granted a security clearance in 2010. In 2006, Applicant was arrested and charged with assault and battery upon a family member. He and his wife engaged in an argument, resulting in a mutual affray. Both were charged, but the case was dismissed because neither party agreed to testify. In 2016, Applicant was charged with assault and battery. His wife stated that he had struck her with an electrical cord. Applicant pled no contest to this charge, and the court deferred adjudication until June 2018. There is no documentary evidence in the file regarding the disposition of this case, except for a JPAS entry based upon a letter from Applicant’s attorney. Applicant’s wife obtained a protective order against him. When Applicant learned that his wife had taken out a line of credit from the equity on their home, he suggested that his son talk to his wife and persuade her to put the money back. He realized that this might be a violation of the protective order and deleted the text to his son. Applicant was indeed charged with violating the protective order by attempting to contact his wife through a third party, though it was not prosecuted. Applicant’s wife lodged other charges against him, for example rape and assault and battery, that were not prosecuted as well. Applicant submitted several letters of recommendation that described him as hard working and professionally competent. He is described as calm, trustworthy, and honest. The Judge’s Analysis The Judge noted that the only evidence in the record to substantiate the charges against Applicant came from his wife. On the other hand, the Judge stated that Applicant had presented no evidence to undercut the veracity of her statements. The Judge relied in large measure upon the arrests in 2006 and 2016, citing to evidence that the latter resulted in a no contest plea and is in deferred adjudication status. Though Applicant has lived apart from his wife and has completed a domestic violence program, the Judge concluded that insufficient time had passed to mitigate the concerns arising from Applicant’s criminal charges.

DISCUSSION

Applicant’s brief appears to assert that his due process rights were impugned. In making his arguments, he presented new evidence, which we generally cannot consider. However, we will consider new evidence insofar as it bears upon threshold issues such as jurisdiction or due process. See, e.g., ISCR Case No.16-01129 at 2 (App. Bd. Aug 7, 2017). Applicant asserts that he was not able to hire an attorney to represent him. He states that the Department Counsel “played down the seriousness of the hearing. In our first conversation, he started off by saying, ‘[Applicant], I want to allay your fears about the upcoming event.’ He went on [to] explain the process and told me he did not intend to call any witnesses or object to anything I submitted.” Appeal Brief at 1. We find nothing objectionable or misleading in the statements attributed to Department Counsel. To the extent that Applicant is contending that Department Counsel in some way caused him to approach the hearing with insufficient seriousness, thereby resulting in a less vigorous mitigation case than he could otherwise have presented, we find nothing in his brief to support such a claim. Moreover, Applicant received pre-hearing guidance from DOHA, as well as a copy of the Directive, which notified him of his rights and responsibilities in presenting his case. Applicant confirmed receipt of both items at the hearing. Transcript pp. 7-8. There is no reason to believe that Applicant was denied adequate notice of his rights or that he was denied the due process afforded by the Directive. Applicant cites to his character references, which he believes that the Judge either did not consider or to which the Judge failed to extend the proper weight. 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. 16-01077 at 3 (App. Bd. Apr. 25, 2018). Applicant contends that the Judge erred in finding that there was no documentary evidence of the deferred adjudication status of his 2016 assault charge. The challenged finding is consistent with the record that was before the Judge. In any event, the Judge found that this charge was indeed in deferred adjudication; therefore, even if there were an error it was harmless.

The record supports a conclusion that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The Judge’s adverse 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.”

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: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board