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ISCR Case 06-22121.a1 — CASE

ISCR Case 06-22121.a1denied

Case Headnote

ISCR Case No. 06-22121.a1

deniedDec 12, 2007· Hon. Jeffrey D. Billett· appeal

Summary

This case concerns an applicant who, representing himself, sought a trustworthiness designation under Guideline J (Criminal Conduct). The applicant's request was ultimately denied.

The denial stemmed from the applicant's history of criminal conduct and his failure to provide sufficient evidence of mitigation. Specifically, the judge noted the absence of any proof that the applicant had attended counseling or rehabilitation programs. The judge found the applicant's arguments unpersuasive and insufficient to demonstrate an error in the initial decision.

Consequently, the judge denied the application, a decision subsequently affirmed by the appeal board. The outcome was a denial of the trustworthiness designation.

Why the Applicant Was Denied

The applicant presented no evidence of attendance at any counseling or rehabilitation programs.
The judge found the applicant's arguments unpersuasive and insufficient to demonstrate error in the decision.

Conditions Referenced

Disqualifying

JraisedCriminal Conduct

Key Rule Quoted

“Once the government presents evidence raising trustworthiness concerns, the burden shifts to the applicant to establish mitigation.”

Procedural Posture

SOR issuedFeb 1, 2007
Answer filed—
Hearing held—Decided on written record.
Decision dateDec 12, 2007

Cite For

Burden of Proof Shifts to Applicant After Government Raises Trustworthiness Concerns
Insufficient Evidence of Rehabilitation Can Lead to Denial Under Guideline J
Judge's Discretion in Weighing Evidence Is Critical in Trustworthiness Determinations

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

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 J DIGEST: Once the government presents evidence raising trustworthiness concerns, the burden shifts to the applicant to establish mitigation. The favorable evidence cited by Applicant is not sufficient to demonstrate that the judge erred. Adverse decision affirmed. CASENO: 06-22121.a1 DATE: 12/12/2007 DATE: December 12, 2007 In Re: -------- Applicant for Public Trust Position ) ) ) ) ) ) ) ) ADP Case No. 06-22121

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) proposed to deny or revoke access to automated information systems in ADP-I/II/III sensitivity positions for Applicant. On February 1, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that The Judge’s adverse determination was predicated in large part on the fact that “[Applicant] presented no evidence of attendance at any counseling or rehabilitation programs” and “there is only limited information on rehabilitation.” Determination at 5. decision—trustworthiness concerns raised under Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested the case be decided on the written record. On July 30, 2007, after considering the record, Administrative Judge Thomas M. Crean, denied Applicant’s request for a trustworthiness designation. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse trustworthiness determination is arbitrary, capricious, or contrary to law. Applicant argues that the Judge’s adverse trustworthiness determination should be reversed because Applicant’s last criminal offense occurred more than five years ago and he has completed a substance abuse program. The Board does not find Applicant’s argument persuasive. In support of his argument, Applicant offers new evidence—a copy of his certificate of completion of an alcohol and substance abuse program. The Board may not consider this new evidence on appeal. See Directive ¶ E3.1.29. Its submission does not demonstrate error on the part of the Judge. See, e.g., ISCR Case No. 06-00184 at 2 (App. Bd. Jul. 24, 2007). Once the government presents evidence raising trustworthiness concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The application of disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. Rather, their application 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 trustworthiness 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. Applicant elected to have his case decided upon the written record—a circumstance under which the Judge did not question the Applicant about his concerns and evaluate his credibility in the context of a hearing. In response to the government’s File of Relevant Material (FORM), Applicant declined to submit any evidence. Applicant has not met his burden of demonstrating that the Judge erred in concluding that the Guideline J allegations had not been mitigated—given the record in this case. Although Applicant disagrees with the Judge’s decision, he has not established that it is arbitrary, capricious, or contrary to law. See Directive ¶ E3.1.32.3. In his decision, the Judge weighed the available mitigating evidence against the seriousness of the disqualifying circumstances, and considered the possible application of relevant mitigating factors. He reasonably explained why the available mitigating evidence was insufficient to overcome the government’s trustworthiness concerns. The favorable record evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-17714 at 3 (App. Bd. Jul. 3, 2007). The Board does not review a case de novo. Given the limited record that was before him, the Judge’s ultimate unfavorable trustworthiness determination is sustainable.

ORDER

The determination of the Judge denying Applicant access to automated information systems in ADP I/II/III sensitivity positions is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Member, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board