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ISCR Case 23-00346 — CASE

ISCR Case 23-00346denied

Case Headnote

ISCR Case No. 23-00346

Jan 31, 2024· Hon. James B. Norman· appeal

Summary

A federal contractor in his early thirties was denied a security clearance under Guideline E (Personal Conduct) due to multiple arrests and his failure to report them on his security clearance application. The applicant admitted to the arrests but denied intentionally falsifying his application.

However, the judge found the applicant's denial of intentional falsification lacked credibility. The decision highlighted a continuing pattern of the applicant failing to abide by rules and regulations, which raised significant concerns about his reliability, trustworthiness, and judgment. Specific disqualifying conditions cited were E2.A5.1. and E2.A5.2.

The Appeal Board subsequently affirmed the denial, noting that the applicant did not assert any harmful error in the initial decision. Consequently, the applicant's security clearance was denied.

Conditions Referenced

Disqualifying

E2.A5.1.raisedCriminal Conduct
E2.A5.2.raisedFalsification of Material Facts

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 issuedMar 29, 2023
Answer filed—Applicant did not respond to the FORM.
Hearing held—Decision made on the written record.
Decision dateJan 31, 2024Appeal decision affirmed.

Cite For

Credibility Assessments in Security Clearance Cases
Impact of Failure to Report Arrests on Security Clearance Eligibility
Standard for Granting Security Clearances Under National Security Interests

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 for the Applicant based on personal conduct concerns. The Applicant did not assert any harmful error in the Administrative Judge's decision. The Appeal Board affirmed the denial, finding the decision sustainable on the record.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCarol G. Ricciardello — denied the clearance

Decided onthe written record

Guidelines belowGuideline E

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant did not assert any harmful error on the part of the Judge.

Why the Board ruled this way

The Board affirmed the Administrative Judge's decision as the Applicant did not allege any harmful error, and the decision was found to be sustainable on the record.

Standard of review applied

No de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Moira Modzelewski — Chair
James B. Norman
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. 23-00346

)

) Applicant for Security Clearance ) _______________________________________)

DEPARTMENT OF DEFENSE DEFENSE LEGAL SERVICES AGENCY DEFENSE OFFICE OF HEARINGS AND APPEALS APPEAL BOARD POST OFFICE BOX 3656 ARLINGTON, VIRGINIA 22203 (703) 696-4759 Date: January 31, 2024

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Julie R. Mendez, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On March 29, 2023, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision – security concerns raised under Guideline E (Personal Conduct) of the National Security Adjudicative Guidelines (AG) of Security Executive Agent Directive 4 (effective June 8, 2017) and DoD Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. He was sent the Government’s File of Relevant Material (FORM) and given the opportunity to respond. Applicant did not respond to the FORM. On November 20, 2023, after considering the record, Defense Office of Hearings and Appeals Administrative Judge Carol G. Ricciardello issued a decision in which she concluded that it is not clearly consistent with the national interest to grant Applicant’s security clearance eligibility. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant is in his early thirties and has worked as a Federal contractor since 2019. The SOR alleged that he had been arrested four times between 2009 and 2019, and that he failed to report three of those arrests as required in Section 22 of his security clearance application. Applicant admitted the arrests but denied intentionally falsifying his application. The Judge concluded that Applicant’s denial lacked credibility. Decision at 3, 6. She also found against him as to the allegations regarding the arrests themselves, concluding that “(a)lthough, some of his

arrests are relatively minor, there is a continuing pattern of failing to abide by rules and regulations that raise questions about his reliability, trustworthiness, and judgment.” Id. at 6. On appeal, Applicant made no assertion of harmful error on the part of the Judge. Instead, he advocates for reconsideration of the Judge’s decision. The Appeal Board does not review cases de novo and is prohibited from considering new evidence on appeal. Directive ¶ E3.1.29. The Board’s authority to review a case is limited to cases in which the appealing party has alleged the Judge committed harmful error. Because Applicant has not made such an allegation of error, the decision of the Judge denying Applicant a security clearance 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). “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.” AG ¶ 2(b).

ORDER

The decision is AFFIRMED. Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Chair, Appeal Board Signed: James B. Norman James B. Norman Administrative Judge Member, Appeal Board Signed: Allison Marie Allison Marie Administrative Judge Member, Appeal Board