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ISCR Case ISCR Case No. 22-00440 — CASE

ISCR Case ISCR Case No. 22-00440denied

Case Headnote

ISCR Case No. ISCR Case No. 22-00440

Mar 27, 2023· Hon. Moira D. Modzelewski· appeal

Summary

The applicant, representing himself, was denied a security clearance based on concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). While the judge found in favor of the applicant regarding Guideline G (Alcohol Consumption), the denial was upheld due to substantial evidence related to the other two guidelines.

Specifically, the applicant admitted to allegations under Guidelines E and J, which raised significant security concerns. The judge determined that the applicant's act of fraudulently obtaining a professional certification directly undermined his trustworthiness. Furthermore, a domestic abuse incident was corroborated by evidence, leading to doubts about the applicant's overall credibility.

The judge concluded that mitigating conditions, including AG ¶ 20 and AG ¶ 17, did not apply in this case due to the documented untrustworthy behavior and the substantiated domestic abuse allegations. The security clearance was therefore denied.

Conditions Referenced

Disqualifying

AG ¶ 15raisedCriminal Conduct
AG ¶ 14raisedPersonal Conduct

Mitigating

AG ¶ 20rejectedMitigating Conditions for Criminal ConductThe judge concluded that none of the potentially applicable mitigating conditions applied.
AG ¶ 17rejectedMitigating Conditions for Personal ConductThe judge found that the applicant's explanations did not mitigate the security concerns.

Key Rule Quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with national security.’”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedSep 16, 2022
Answer filed—Applicant requested a decision on the written record.
Hearing heldFeb 15, 2023
Decision dateMar 27, 2023Decision affirmed on appeal.

Cite For

Denial of Security Clearance Based on Personal Conduct and Criminal Conduct Under Guidelines E and J
Substantial Evidence Required to Support Findings of Untrustworthiness
Credibility Determinations by Judges Are Given Deference on Appeal.

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 allegations under Guideline E, J, and G. The Applicant challenged the Judge's findings regarding domestic abuse and criminal conduct but failed to demonstrate harmful error. The Board affirmed the decision of the Administrative Judge.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowBenjamin R. Dorsey — denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline EGuideline JGuideline G

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's findings regarding the Guideline E and J allegations were arbitrary and capricious.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge did not properly weigh the evidence regarding the domestic abuse incident.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge failed to consider his evidence of rehabilitation and responsible drinking.

Why the Board ruled this way

The Board found that the Judge's decision was based on substantial evidence and that the Applicant failed to demonstrate any harmful error in the Judge's findings or conclusions.

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
Moira Modzelewski
Allison Marie

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. 22-00440

)

) Applicant for Security Clearance ) _______________________________________) Date: March 27, 2023

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 September 16, 2022, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision―security concerns raised under Guideline E (Personal Conduct), Guideline J (Criminal Conduct), and Guideline G (Alcohol Consumption) of DoD Directive 5220.6 (January 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On February 15, 2023, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Benjamin R. Dorsey denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. For reasons stated below, we affirm the decision. The Judge found in favor of Applicant on the Guideline G allegations. In responding to the SOR, Applicant admitted the Guideline E and J allegations with explanations. However, his response to a domestic abuse allegation amounts to a denial because he claimed he did not commit any abuse. The Judge found against Applicant on the Guideline E and J allegations, concluding that none of the potentially applicable mitigating conditions applied and that the record evidence raised doubts about his security clearance eligibility

In his appeal brief, Applicant presents new evidence, which the Appeal Board is prohibited from considering. Directive ¶ E3.1.29. Applicant also presents arguments challenging aspects of the Guideline E and J allegations that are addressed below. Fraudulently Obtaining a Professional Certification and Employment Resignation Regarding these allegations, the Judge stated: Applicant paid another individual to take a certification exam for him that was either required by his employer or would benefit his standing with his employer. He gained the certification under false pretenses. He then resigned from his employment [in April 2021] based upon this untrustworthy behavior. [Decision at 5.] In his brief, Applicant contends the Judge found “that I did not self-report” this conduct. The SOR alleged that Applicant “self-reported” this fraudulent behavior. Furthermore, the Judge found that, “Applicant reported this conduct to his employer, apologized for his behavior, . . . [but it] is unclear from the record whether he reported this conduct prior to being confronted with it.” Decision at 2. To the extent that Applicant is challenging the Judge’s finding regarding the timing or sequencing of the self-reporting, he has failed to identify any evidence in the record to show the Judge erred in that finding. Directive ¶ E3.1.30 requires that an appeal brief state the specific issues being raised and cite specific portions of the record supporting any alleged error. Additionally, there is no presumption of error below, and the appealing party has the burden of demonstrating that the Judge committed factual or legal error. See, e.g., ISCR Case No. 00-0339 at 3 (App. Bd. Mar. 22, 2001). In this case, Applicant has failed to meet that burden regarding the Guideline E allegations. Domestic Abuse Incident Regarding this allegation, the Judge found: In about September 2017, Applicant physically assaulted his ex-spouse after getting into an argument with her. Applicant’s ex-spouse alleged that he body- slammed her, causing her to strike her arm heavily on a dresser and the floor. Applicant claimed that he did not touch his ex-spouse, and that she struck him. [Decision at 2.] On appeal, Applicant again contends that he never assaulted his ex-spouse and argues that she assaulted him. In doing so, he highlights that he was never charged with any offense due to this incident and states that his ex-spouse was having an intimate relationship with the military police officer who arrested him. In the findings of fact, the Judge noted that, when the military police arrived at the scene, they noticed bruising on the ex-spouse’s arm and scratches on Applicant’s arm, that he told the police that he and his ex-spouse did not have domestic abuse issues in the past but contradicted that statement during his counseling with a social worker, and that a military “Family Advocacy Program Case Review Committee determined that Applicant’s

ex-spouse qualified as a victim of physical abuse based on this incident” and that she was authorized compensation as a family member who was physically abused by a military member. Decision at 3. The Judge concluded that the evidence corroborated the spouse’s version of the events and that Applicant was not truthful about the incident, which undercut his mitigating evidence. Decision at 7. Directive ¶ E3.1.32.1 requires the Appeal Board to give deference to a Judge’s credibility determinations. We find no basis for not giving such deference in this case. From our review of the record, the Judge’s material findings and conclusions of a security concern regarding the domestic abuse allegation are based on substantial evidence or constitute reasonable inferences that could be drawn from the evidence. See, e.g., ISCR Case No. 17-02225 at 2-3 (App. Bd. Jun. 25, 2019). Driving While Intoxicated In 2017, Applicant drove a vehicle while intoxicated by alcohol. He was stopped on post by military police and breathalyzer tests registered blood alcohol content levels of .116, .102, and .092. At a nonjudicial punishment proceeding, he was reduced in rank and was awarded 45 days of extra duty and restriction. In 2018, he was administratively separated from the military with a general discharge under honorable conditions. Decision at 2. Applicant’s brief highlights that these events occurred five years ago, that he has attended counseling, including mental-health counseling, and that he now drinks responsibly. A security clearance decision must be based upon consideration of all the relevant and material information. Directive ¶ 6.3. Applicant’s arguments fail to establish that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Directive ¶ E3.1.32.3.

CONCLUSION

Applicant’s brief states that revoking his security clearance will negatively impact not only him but also his family. The Directive, however, does not permit us to consider the impact of an unfavorable decision. See, e.g., ISCR Case No. 17-03024 at 3 (App. Bd. Jan. 9, 2020). Applicant failed to establish that the Judge committed any harmful error or that he merits any relief. 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 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 national security.”

ORDER

The decision is AFFIRMED. Signed: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board Signed: Allison Marie Allison Marie Administrative Judge Member, Appeal Board