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ISCR Case 21-01673 — CASE

ISCR Case 21-01673denied

Case Headnote

ISCR Case No. 21-01673

Oct 3, 2022· Hon. Moira D. Modzelewski· appeal

Summary

A woman in her early thirties was denied a security clearance primarily under Guideline J (Criminal Conduct), with Guideline F (Financial Considerations) also noted. The denial stemmed from a DUI incident and subsequent probation violations, which raised concerns about her judgment and adherence to legal requirements.

Specifically, the disqualifying condition J.1 was identified, indicating a history of criminal conduct. While mitigating condition J.2 was considered, the judge ultimately determined that the applicant had not sufficiently mitigated the concerns arising from her criminal conduct.

The appeal board affirmed the denial, concluding that the applicant's actions demonstrated poor judgment and a disregard for the law, which significantly impacted her trustworthiness and reliability for a security clearance.

Conditions Referenced

Disqualifying

J.1raisedCriminal Conduct

Mitigating

J.2rejectedMitigating CircumstancesThe applicant's completion of a substance abuse program and character references did not sufficiently mitigate the criminal conduct concerns.

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 issuedAug 6, 2021
Answer filed—
Hearing heldAug 2, 2022Decision on the written record.
Decision dateOct 3, 2022

Cite For

Affirmation of Denial Based on Criminal Conduct Under Guideline J
Consideration of Poor Judgment as a Factor in Trustworthiness
Rejection of Mitigating Circumstances Related to Criminal Conduct

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 financial considerations and criminal conduct. The applicant argued that the Administrative Judge failed to consider all evidence and mis-weighed it. The Board affirmed the decision, finding no harmful error in the Judge's analysis.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDarlene D. Lokey Anderson — denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge failed to consider all of the evidence or mis-weighed the evidence, resulting in a decision that 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 Judge did not act arbitrarily or capriciously in weighing 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

James F. Duffy — Chair
James E. Moody
Moira Modzelewski

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

APPEARANCES

___________________________________

) In the matter of: )

)

-----

)

ISCR Case No. 21-01673

)

) Applicant for Security Clearance ) _______________________________________) Date: October 3, 2022

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 6, 2021, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision⸺security concerns raised under Guideline F (Financial Considerations) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On August 2, 2022, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Darlene D. Lokey Anderson 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 failed to consider all of the evidence or whether she mis-weighed the evidence, resulting in a decision that was arbitrary,

capricious, or contrary to law. The Judge’s favorable findings under Guideline F are not at issue in this appeal. Consistent with the following, we affirm. The Judge’s Findings of Fact and Analysis Applicant is in her early 30sand seeks to obtain a security clearance in connection with her job. The specific findings pertinent to the issues raised on appeal center around an incident of DUI and its aftermath. Applicant was arrested and charged with that offense in June 2019, her blood alcohol level registering .16. She was sentenced to 12 months of confinement with 11 months and 25 days suspended, a fine, and supervised probation. Applicant successfully completed a substance abuse counseling program. In late 2019 and again in early 2020, Applicant failed to report to the local sheriff’s office for the completion of required community service and was charged with a probation violation. On both occasions she claimed that she had been working late and that it was difficult for her to arrive at the sheriff’s office early in the morning. As result of her second offense Applicant was required to serve seven days “straight time” in jail. Decision at 5. The Judge concluded that Applicant’s misconduct demonstrates “poor judgment, immaturity, and a total disregard for the law,” thereby impugning her trustworthiness and reliability. Id. at 8. The Judge held that Applicant had not mitigated the concerns arising from her criminal conduct.

DISCUSSION

Applicant contends that the Judge did not consider all of the evidence that she submitted in her behalf, making specific reference to her character references. Applicant attaches to her appeal brief copies of documents that she had included in her Answer to the SOR and in her Response to the File of Relevant Material. In addition, her brief cites to matters that she believes provide context to her security concerns. We have considered Applicant’s arguments in light of the totality of the record evidence. The Judge made findings about many of the things Applicant cites in her brief, including her character references and her explanation for her probation violations. A Judge cannot be expected to explicitly address every pieces of record evidence, which would be a virtual impossibility. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 18-02872 at 3 (App. Bd. Jan. 15, 2020). Applicant’s brief consists, in large measure, of a disagreement with the Judge’s weighing of the evidence, which 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., ISCR Case No. 20-03789 at 3 (App. Bd. Aug. 20, 2022). 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: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board