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ISCR Case 06-00520.a1 — CASE

ISCR Case 06-00520.a1denied

Case Headnote

ISCR Case No. 06-00520.a1

Nov 9, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance due to concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The denial was based on a lengthy and serious history of criminal and personal misconduct, encompassing 14 separate incidents that occurred between 1990 and 2004.

The judge determined that the applicant's mitigating factors were insufficient to outweigh the gravity of his disqualifying conduct. The decision highlighted the presumption against granting security clearances when significant security concerns are raised, concluding that the applicant's history presented such concerns.

Ultimately, the judge found that the evidence reasonably supported the government's position, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

JraisedCriminal Conduct
EraisedPersonal Conduct

Key Rule Quoted

“[T]here is a strong presumption against granting a security clearance.”
— Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)

Procedural Posture

SOR issuedMar 7, 2007
Answer filed—
Hearing heldJun 30, 2007
Decision dateNov 9, 2007

Cite For

Presumption Against Granting Security Clearances Under Guideline J
Consideration of the Whole Person Factors in Security Clearance Decisions
The Significance of a Pattern of Conduct in Evaluating Security Concerns

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 an applicant seeking a security clearance who was denied based on criminal conduct and personal conduct under Guidelines J and E. The applicant argued that the Judge's decision was arbitrary and capricious, citing the dismissal of charges and personal circumstances. The Board affirmed the Judge's decision, finding no harmful error in the unfavorable ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowShari Dam — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline JGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's unfavorable security clearance decision under Guidelines J and E was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and was not arbitrary, capricious, or contrary to law. The Judge reasonably weighed the evidence and considered the applicant's history of criminal conduct in reaching her decision.

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

Michael Y. Ra’anan — Chair
Jean E. Smallin
William S. Fields

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

FOR OFFICIAL USE ONLY When unredacted this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies KEYWORD: Guideline J; Guideline E DIGEST: A Judge can find an applicant has engaged in Criminal conduct even if criminal charges were dropped or dismissed. Adverse decision affirmed. CASENO: 06-00520.a1 DATE: 11/09/2007 DATE: November 9, 2007 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-00520

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On March 7, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline J (Criminal Conduct) and The Judge found in favor of Applicant with respect to SOR paragraphs 1.k, l.1, 1.r, 2.a, 2.c, and 2.d. Those favorable findings are not at issue on appeal. Guideline E (Personal Conduct) pursuant to Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On June 30, 2007, Administrative Judge Shari Dam denied Applicant’s request for a security clearance. Applicant submitted a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s unfavorable security clearance decision under Guidelines J and E is arbitrary, capricious, or contrary to law. Applicant argues that the Judge’s adverse clearance decision under Guideline J should be reversed because: (a) a number of the criminal charges against him were dated and many had been dismissed; (b) a number of the incidents had resulted from marital or interpersonal difficulties that were no longer present; (c) the most recent incident, a 2004 conviction for Reckless Driving, was not serious; and (d) he had subsequently demonstrated rehabilitation under the whole person factors. Similarly, he argues that the Judge’s adverse clearance decision under Guideline E should be reversed because the 2001 incident for misappropriation of time and allowing another person to enter hours in direct violation of company rules and policies was a dated, isolated incident, also mitigated under the whole person factors. Applicant’s arguments do not demonstrate that the Judge erred. A Judge can find an applicant has engaged in criminal conduct even if the criminal charges against the applicant were dropped or dismissed. See, e.g., ISCR Case No. 03-11906 at 3 (App. Bd. Jul. 19, 2005); ISCR Case No. 03-21761 at 5 (App. Bd. Nov. 28, 2005). The ultimate state court dispositions of Applicant’s criminal incident did not preclude the Judge from making findings adverse to the Applicant. Moreover, it was reasonable for the Judge to consider the significance of Applicant’s pattern of conduct as a whole, rather than analyzing each separate criminal or personal conduct incident in a piecemeal fashion. See, e.g., ISCR Case No. 04-12648 at 3-4 (App. Bd. Oct. 20, 2006) citing Raffone v. Adams, 468 F. 2d 860 (2 Cir. 1972) (taken together, separate events may nd have a significance that is missing when each event is viewed in isolation). Considering the record as a whole, the Judge’s material findings with respect to Applicant’s conduct of security concern reflect a reasonable interpretation of the record evidence. “[T]here is a strong presumption against granting a security clearance.” Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). Once the government th presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The application of disqualifying and mitigating conditions requires the exercise of sound discretion in light of the record evidence as a whole. See, e.g., ISCR Case No. 01-14740 at 7 (App. Bd. Jan.15, 2003). Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. An applicant’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. The charges against Applicant included Indecent Exposure, Domestic Assault, Disturbing the Peace, Reckless Driving, Concealed Weapon, Brandishing a Firearm, Assault, Annoying Phone Calls, Worthless Check, Communicating a Threat, Stalking, Violation of Probation, and Trespassing. Decision at 8. In this case, the Judge found that Applicant had a lengthy and serious history of criminal and personal misconduct. That history included 14 criminal incidents between 1990 and 2004. In her decision, the Judge weighed the mitigating evidence offered by Applicant against the length and seriousness of the disqualifying conduct and considered the possible application of relevant mitigating conditions and whole person factors. She specifically considered such mitigating evidence as Applicant’s military service, his candid disclosures about his past conduct, the dismissal of cases, his remorse, and “his current professional successes and aspirations, and enthusiasm for his new family” in reaching her decision. She found in favor of Applicant with respect to some of the SOR allegations. However, the Judge reasonably explained why the evidence which the Applicant had presented in mitigation under Guidelines J and E was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. Given the record that was before her, the Judge’s ultimate unfavorable clearance decision under Guidelines J and E is not arbitrary, capricious, or contrary to law.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’annan Administrative Judge Chairman, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board