A decided public DOHA case, shown for research, not advice or a prediction.
ISCR Case No. 22-01128
Appeal BoardDecided Jul 31, 2023 · Administrative Judge Gregg A. Cervi · Appeal
Case headnote
Summary
The applicant, a young commercial diver employed by a defense contractor, faced security clearance denial due to issues under Guidelines J (Criminal Conduct), F (Financial Considerations), and E (Personal Conduct). The applicant was found guilty of multiple criminal offenses, including violations of a protective order, and failed to disclose these on his security clearance application. The appeal was denied as the applicant did not demonstrate any harmful error by the judge.
Why the applicant was denied
- The applicant was found guilty of multiple criminal offenses, including stalking and violation of a protective order.
- The applicant failed to disclose his criminal history on his security clearance application.
Conditions referenced
Disqualifying
- AG J Criminal Conductraised
- AG E Personal Conductraised
Mitigating
- AG F Financial Considerationsapplied
Key rule quoted
“There is no presumption of error below and the appealing party has the burden of demonstrating that the Judge committed factual or legal error.”
Procedural posture
- SOR issued
- 2022-09-02
- Answer filed
- Hearing held
- 2023-05-31
- Decision date
- 2023-07-31 Appeal affirmed.
Cite for
- Denial of Security Clearance Due to Criminal Conduct Under Guideline J
- Failure to Disclose Criminal History Under Guideline E
- Affirmation of Decision When No Harmful Error Is Asserted 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
The appeal involved a denial of security clearance based on criminal conduct, financial considerations, and personal conduct. The Applicant did not assert any harmful errors in the Judge's decision. The Board affirmed the denial of the security clearance.
Descriptive structured reading of this decided, public Appeal Board decision: what the case says, not a prediction or advice.
Full decision
Open original PDFThe complete official text, footnotes and signatures included, is in the original PDF.
Decision text, by section
Appearances
_______________________________________ ) In the matter of: )
)
)
----- )
ISCR Case No. 22-01128
)
) Applicant for Security Clearance ) _______________________________________) Date: July 31, 2023
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 2, 2022, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision – security concerns raised under Guideline J (Criminal Conduct), Guideline F (Financial Considerations), and Guideline E (Personal Conduct) of the National Security Adjudicative Guidelines (AG) in Appendix A of Security Executive Agent Directive 4 (effective June 8, 2017) and DoD Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). On May 31, 2023, Defense Office of Hearings and Appeals Administrative Judge Benjamin R. Dorsey denied Applicant’s security clearance eligibility. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant is in his early 20s. He earned a commercial diving certificate in March 2021 and has worked for a defense contractor since April 2021. Under Guideline J, the SOR alleged that Applicant was arrested three times in December 2021 and charged with offenses including Stalking, Obstruction of Justice, Violation of Protective Order, and Assault and Battery. Applicant was found guilty of the two Protective Order violation charges and sentenced to six months in jail, with all but one day suspended, and was issued another Protective Order prohibiting his contact with the victim. Under Guideline E, the SOR alleged that Applicant deliberately failed to disclose the foregoing arrests on his 2022 security clearance application, and that he was also charged with
three driving offenses and a related Probation Violation between 2019 and 2021. The Judge found in favor of Applicant on the single Guideline F allegation, but against him on all Guideline J and Guideline E allegations. 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. 00-0050, 2001 WL 1044490 at *1 (App. Bd. Jul. 23, 2001). On appeal, Applicant makes no assertion of error on the part of the Judge. Rather, he reiterates generally the same limited explanations he submitted in response to the SOR. The Appeal Board does not review cases de novo, and our authority to review a case is limited to matters in which the appealing party has raised a claim of harmful error. Applicant has not alleged any such harmful error. Accordingly, the Judge’s decision is affirmed.
Order
The decision is AFFIRMED. Signed: James F. Duffy James F. Duffy Administrative Judge Chair, Appeal Board Signed: Gregg A. Cervi Gregg A. Cervi Administrative Judge Member, Appeal Board Signed: Allison Marie Allison Marie Administrative Judge Member, Appeal Board