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ISCR Case 17-01588.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date8/7/2018
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 17-01588.h1) →
Participants
Applicant Representation: Pro Se
Judge: Michael Y. Ra'anan, Charles C. Hale, James E. Moody
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline GAlcohol Consumption · Against Applicant
- Guideline JCriminal Conduct · Against Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
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ISCR Case 17-01588.a1denied

Case Headnote

ISCR Case No. 17-01588.a1

Aug 7, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct).

The denial was based on a history of disqualifying conditions. These included multiple DWI and DUI offenses, as well as a domestic violence protective order issued against the applicant following an assault on the mother of his child.

A significant factor in the denial was that the applicant's most recent misconduct occurred after he submitted his security clearance application. Ultimately, the applicant failed to provide sufficient evidence of rehabilitation or modified behavior to mitigate the security concerns.

Conditions Referenced

Disqualifying

JraisedCriminal Conduct
GraisedAlcohol Consumption
EraisedPersonal 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 issuedJul 31, 2017
Answer filed—Applicant represented himself.
Hearing heldMar 30, 2018
Decision dateAug 7, 2018Appeal affirmed.

Cite For

Denial Based on Criminal Conduct Under Guideline J
Denial Based on Alcohol Consumption Under Guideline G
Denial Based on Personal Conduct Under Guideline E

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 was filed by the applicant after the DoD denied his request for a security clearance based on concerns under Guidelines E, G, and J. The applicant argued that the Judge's findings were erroneous and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and not contrary to law.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCaroline E. Heintzelman — denied the clearance

Decided onthe written record

Guidelines belowGuideline EGuideline GGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse decision was arbitrary, capricious, or contrary to law.
Erroneous finding of fact — raised by the applicantRejected
Applicant contended that the Judge erred in finding that he had committed the offense that resulted in the protective order.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the decision was not arbitrary or capricious. The Judge properly considered the evidence and articulated a satisfactory explanation for the adverse decision.

Standard of review applied

No new evidence on appealSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural compliance

Appeal Board panel

Michael Ra’anan — Chair
James E. Moody
Charles C. Hale

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 G; Guideline J DIGEST: Although Item 7 is indeed hearsay, such evidence is generally admissible in administrative hearings. Adverse decision affirmed. CASENO: 17-01588.a1 DATE: 08/07/2018 DATE: August 7, 2018 In Re: ---------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 17-01588

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 July 31, 2017, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline J (Criminal Conduct), Guideline G (Alcohol Consumption), 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 30, 2018, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Caroline E. Heintzelman 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 findings of fact contained errors 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 and Analysis The Judge found that Applicant was arrested and convicted of DWI in 2009. He paid a fine, court costs, and attended an alcohol education program. Two years later, a court issued a Domestic Violence Protective order against Applicant after he assaulted the mother of his son. He had consumed alcohol prior to the incident. In late 2016, Applicant was arrested for DUI. He was subsequently convicted and sentenced to two years probation, which will not expire until March 2019. These offenses were alleged in the SOR. In addition, the Judge found that Applicant had gone to trial in late 2016 for a another alcohol-related assault against the same victim, an incident not alleged in the SOR. This information was disclosed during Applicant’s clearance interview. The Judge stated that she was considering it in evaluating Applicant’s case for mitigation, his credibility, and the whole-person factors. The Judge noted that Applicant’s last alleged misconduct occurred after he had submitted his security clearance application. She concluded that Applicant had not presented sufficient evidence of rehabilitation or modified behavior. She concluded that insufficient time has passed to establish that Applicant’s security-significant conduct is behind him.

DISCUSSION

Applicant’s brief includes matters that are not contained in the record. We cannot consider new evidence on appeal. Directive ¶ E3.1.29. Applicant contends that the Judge erred in finding that he had committed the offense that resulted in the protective order. He reiterates claims that he made in his response to the SOR that the victim had fabricated the charges in order to gain custody of their son. He argues that the evidence in support of this finding is merely hearsay. The Judge’s findings on this matter are based upon the factual statements in the Petition from Domestic Violence filed against Applicant by the victim. The statements are detailed, signed by the victim, and were subsequently found by the court to constitute clear and convincing evidence of the offense. Petition and Final Order, contained in Item 7. The challenged findings are based upon “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). Although Item 7 is indeed hearsay, such evidence is generally admissible in administrative hearings. See, e.g., ISCR Case No. 15-02859 at 3 (App. Bd. Jun. 23, 2017). Item 7 consists of court documents that constitute official records admissible under Directive ¶ E3.1.20 despite their hearsay character. The balance of Applicant’s brief is a challenge to the Judge’s weighing of the evidence. His arguments are not enough 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. 16-04094, supra, at 3. 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.”

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: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board