CASEClearance Adjudication Search EngineCASE

Loading case…

ISCR Case 04-09618.a1 — CASE

ISCR Case 04-09618.a1granted

Case Headnote

ISCR Case No. 04-09618.a1

Jun 26, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

A Naval veteran and facility security officer was granted a security clearance despite concerns raised under Guideline D (Sexual Behavior) and Guideline J (Criminal Conduct). The concerns stemmed from a past sexual offense, during which the applicant was HIV positive. Disqualifying conditions J1 and D1 were initially identified.

However, the judge applied mitigating conditions D2 and J2, finding that the applicant's actions did not warrant denial of clearance. This decision was based on several factors. The applicant had undergone counseling following the incident and had no prior offenses on his record.

The judge also considered the applicant's conduct within the broader context of his overall character and circumstances. Ultimately, the security clearance was granted.

Conditions Referenced

Disqualifying

J1raisedCriminal Conduct That Creates a Risk to National Security.
D1raisedSexual Behavior That Raises Questions About an Individual's Judgment, Reliability, or Trustworthiness.

Mitigating

D2appliedThe Sexual Behavior Was Not Recent and Was an Isolated Incident.
J2appliedThe Individual Has Taken Positive Steps to Reduce or Eliminate the Risk Associated with the Criminal Conduct.

Key Rule Quoted

“A Judge is presumed to have considered all evidence in the record.”
— ISCR Case No. 01-03357 at 4 (App. Bd. Dec. 13, 2005)

Procedural Posture

SOR issuedSep 1, 2004
Answer filed—
Hearing heldOct 25, 2006
Decision dateJun 26, 2007

Cite For

Consideration of Past Conduct in the Context of Overall Character
Mitigating Factors Related to Isolated Incidents of Criminal Behavior
Presumption of Evidence Consideration by Judges in Security Clearance Cases

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 challenge by Department Counsel to the Administrative Judge's decision to grant the Applicant a security clearance despite a past sexual offense. Department Counsel argued that the Judge failed to consider the Applicant's HIV positive status at the time of the offense. The Board affirmed the Judge's decision, finding no harmful error in the analysis.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowMarc E. Curry — granted the clearance

Decided ona hearing

Guidelines belowGuideline DGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the Government (Department Counsel)Rejected
Department Counsel argues that the Judge failed to consider the fact that Applicant was HIV positive when he committed his sexual offense in 2003.

Why the Board ruled this way

The Board found no error in the Judge's decision, affirming that he considered the risks associated with the Applicant's conduct in his overall assessment.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan — Chair
Jean E. Smallin
James E. Moody

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

SYNOPSIS

KEYWORD: Guideline D; Guideline J DIGEST: Department Counsel argues that the Judge failed to consider the fact that Applicant was HIV positive when he committed his sexual offense in 2003. The language employed by the Judge suggests otherwise. Favorable decision affirmed. CASENO: 04-09618.a1 DATE: 06/26/2007 DATE: June 26, 2007 In Re: ------------ SSN: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 04-09618

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Julie R. Edmunds, Esq., Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On September 1, 2004, DOHA issued a statement of reasons advising Applicant of the basis for that decision–security concerns raised under Guideline D (Sexual Behavior) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On October 25, 2006, after the hearing, Administrative Judge Marc E. Curry granted Applicant’s request for a security clearance. Department Counsel filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, and contrary to law in that he did not consider significant record evidence. Finding no error, we affirm. The Judge found the following: Applicant, a Naval veteran, is facility security officer for a staffing firm that serves clients with security clearances. Applicant submitted his application for a clearance on September 11, 2003. In October 2003, a police officer observed Applicant engaging in a sexual act with another person in front of a urinal in a department store restroom. The officer arrested Applicant. Applicant was charged with indecent exposure and with an additional offense arising from the sexual act. He served six months of unsupervised probation, after which the indecent exposure charge was nulle prossed and the other dismissed. This was the only time Applicant engaged in such conduct. He underwent counseling, both by himself and with his domestic partner. He has informed both his partner and his employer of the offense. Department Counsel did not challenge the Judge’s findings, adopting them as part of her brief. However, she argued that the Judge erred in not taking into consideration the fact that, at the time of the offense, Applicant was HIV positive. She argued that the risks inherent in Applicant’s conduct raise serious doubts as to his judgement, reliability, and trustworthiness. We have examined the Judge’s decision in light of the record as a whole. We do not find Department Counsel’s argument persuasive. We note first of all that a Judge is presumed to have considered all evidence in the record. See, e. g., ISCR Case No. 01-03357 at 4 (App. Bd. Dec. 13, 2005). Additionally, we note the following statement from the Conclusions section of the Judge’s decision. “In engaging in a sexual act in a public restroom with a stranger, Applicant brazenly disregarded the health risks of such activity, and its potential legal consequences.” Decision at 5. Although he did not mention the term “HIV,” the Judge did, obviously, give serious consideration to the riskiness of Applicant’s conduct and weighed it as part of his whole person analysis. Though Department Counsel may disagree with the Judge’s weighing of the evidence, the Board finds no reason to conclude that the Judge’s decision is arbitrary, capricious, or contrary to law.

ORDER

The Judge’s decision granting Applicant a clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board