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ISCR Case 17-01755.a1 — CASE

Case record

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

Decision Date8/13/2018
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 17-01755.h1) →
Participants
Applicant Representation: Pro Se
Judge: Michael Y. Ra'anan, Charles C. Hale, James F. Duffy
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline FFinancial Considerations · 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.
Finding similar decisions…

ISCR Case 17-01755.a1denied

Case Headnote

ISCR Case No. 17-01755.a1

Aug 13, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A 43-year-old male applicant was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline F (Financial Considerations), and Guideline J (Criminal Conduct). The denial stemmed from multiple criminal incidents that occurred after the applicant had previously received a favorable clearance.

The applicant admitted to 11 of 13 criminal incidents, which established disqualifying conditions under Guideline J. The appeal board affirmed the denial, noting that insufficient time had passed since the applicant's last arrest to conclude that he had been rehabilitated.

No mitigating conditions were found applicable to the applicant's case, leading to the final decision to deny the security clearance. The board emphasized the compelling interest of national security in its affirmation.

Conditions Referenced

Disqualifying

31(a)appliedCriminal Conduct - Pattern of Minor Offenses
31(b)appliedCriminal Conduct - Evidence of Criminal Conduct

Key Rule Quoted

“A favorable security clearance decision does not give an applicant a right to retain a security clearance or bar an adverse security clearance decision when an applicant has engaged in misconduct subsequent to the favorable security clearance decision.”
— Department of the Navy v. Egan, 484 U.S. 518, 527 (1988)

Procedural Posture

SOR issuedAug 8, 2017
Answer filed—
Hearing held—
Decision dateAug 13, 2018Appeal affirmed on this date.

Cite For

Denial of Security Clearance Due to Recent Criminal Conduct Under Guideline J
Impact of Prior Favorable Clearance on Current Eligibility
Lack of Rehabilitation as a Basis for Security Clearance Denial

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 the applicant's criminal conduct. The applicant argued that the Judge's decision was arbitrary and did not consider his prior favorable clearance. The Board affirmed the decision, finding no harmful error in the Judge's ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPhilip J. Katauskas — denied the clearance

Decided onthe written record

Guidelines belowGuideline EGuideline FGuideline 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.

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 any harmful error. The adverse decision was affirmed based on the applicant's criminal conduct occurring after a prior favorable clearance decision.

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
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 F DIGEST: A favorable security clearance decision does not bar an adverse security clearance decision when an applicant has engaged in misconduct subsequent to the favorable security clearance decision. In this case, Applicant admitted to criminal conduct that occurred after his favorable security clearance adjudication. Adverse decision affirmed. CASENO: 17-01755.a1 DATE: 08/13/2018 DATE: August 13, 2018 In Re: -------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 17-01755

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 8, 2017, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations), 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 May 2, 2018, after considering the record, Administrative Judge Philip J. Katauskas 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. The Judge’s favorable findings under Guideline F are not at issue on appeal. Consistent with the following, we affirm. The Judge’s Pertinent Findings of Fact and Analysis Applicant is 43 years old, has never been married, and has a minor son. He served in the military and was involuntarily separated for unacceptable conduct with a general discharge under honorable conditions. The SOR alleged that Applicant’s was involved in 13 criminal incidents between 2008 and 2016. These include a “probation violation; simple battery; criminal trespass; narcotic possession; driving on a suspended or revoked license; altering a license plate; contempt of court . . . reckless conduct with a child; driving under the influence; operating a vehicle with an expired license; tampering; and theft of public utilities.” Decision at 4. He denied the tampering and theft of public utilities allegation, but admitted the others. In separate incidents in 2012, Applicant was also arrested for deprivation of a child and reckless conduct and for driving under the influence. Applicant presented documents showing that the narcotics possession and a related charge were dismissed and that he was no longer on probation. A Guideline E allegation asserted that Applicant received nonjudicial punishment in the military for fraternizing with enlisted females and conduct unbecoming an officer. Applicant’s admissions to 11 of the 13 Guideline J allegations established disqualifying conditions 31(a) and 31(b).1 None of the mitigating conditions applied. His most recent probation ended in 2017. Insufficient time has passed since his latest arrest to conclude he has been rehabilitated.

DISCUSSION

1 Directive, Encl. 2, App. A ¶ 31(a) states, “a pattern of minor offenses, any one of which on its own would be unlikely to affect a national security eligibility decision, but which in combination cast doubt on the individual's judgment, reliability, or trustworthiness;” and ¶ 31(b) states, “evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the individual was formally charged, prosecuted, or convicted[.]” In his appeal brief, Applicant contends that he was issued a security clearance in 2011 and it was not scheduled to expire until 2021. He argues the Judge did not consider that he was granted the earlier clearance. To the extent that he may be arguing that his security clearance eligibility cannot be reexamined, we do not find that argument persuasive. The Federal Government has a compelling interest in protecting and safeguarding classified information. Department of the Navy v. Egan, 484 U.S. 518, 527 (1988). A favorable security clearance decision does not give an applicant a right to retain a security clearance or bar an adverse security clearance decision when an applicant has engaged in misconduct subsequent to the favorable security clearance decision. See, e.g., ISCR Case No. 04-08806, at 4 (App. Bd. May 8, 2007). In this case, Applicant admitted to criminal conduct that occurred after his favorable security clearance adjudication. Applicant also contends that the Judge “did not dig deeper into the facts and circumstances” in his police record and did not consider favorable background information on him. Appeal Brief at 1. His arguments, however, are neither sufficient to rebut the presumption that the Judge considered all of the evidence in the record nor 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. 14-03747 at 3 (App. Bd. Nov. 13, 2015). Applicant has not identified any harmful error in the Judge’s decision. 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, supra, at 528. 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: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board