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ISCR Case 22-01128 — CASE

ISCR Case 22-01128denied

Case Headnote

ISCR Case No. 22-01128

Jul 31, 2023· Hon. Gregg A. Cervi· appeal

Summary

A security clearance application for a young commercial diver, employed by a defense contractor, was denied based on concerns under Guideline J (Criminal Conduct), Guideline F (Financial Considerations), and Guideline E (Personal Conduct).

The denial stemmed primarily from the applicant's criminal history, which included multiple offenses such as stalking and violating a protective order. Crucially, the applicant failed to disclose these criminal convictions on his security clearance application, raising further concerns about personal conduct.

While mitigating conditions were applied under Guideline F, the disqualifying conditions under Guidelines J and E ultimately led to the denial. The applicant's appeal was unsuccessful, as no harmful error by the judge was demonstrated.

Conditions Referenced

Disqualifying

AG JraisedCriminal Conduct
AG EraisedPersonal Conduct

Mitigating

AG FappliedFinancial Considerations

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.”
— ISCR Case No. 00-0050, 2001 WL 1044490 at *1 (App. Bd. Jul. 23, 2001)

Procedural Posture

SOR issuedSep 2, 2022
Answer filed—
Hearing heldMay 31, 2023
Decision dateJul 31, 2023Appeal 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· Full written decision

Affirmed

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 Administrative Judge's decision. The Appeal Board affirmed the decision of the Judge.

Appealed bythe applicant

Applicant representationPro se (self-represented)

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

Decided ona hearing

Guidelines belowGuideline JGuideline FGuideline E

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant made no assertion of error on the part of the Judge.

Why the Board ruled this way

The Board found no harmful error alleged by the Applicant and affirmed the Judge's decision based on the lack of claims of error.

Standard of review applied

No de-novo re-decisionHarmful-error gatekeeper

Appeal Board panel

James F. Duffy — Chair
Gregg A. Cervi
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. 22-01128

)

) Applicant for Security Clearance ) _______________________________________) Date: July 31, 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 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