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ISCR Case 06-22044.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date2/28/2008
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 06-22044.h1) →
Participants
Applicant Representation: Pro Se
Judge: Jean E. Smallin, James E. Moody, William S. Fields
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline DSexual Behavior · Against Applicant
- Guideline EPersonal Conduct · Against Applicant
- Guideline JCriminal Conduct · Against Applicant

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Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
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ISCR Case 06-22044.a1denied

Case Headnote

ISCR Case No. 06-22044.a1

Feb 28, 2008· Hon. Jean E. Smallin· appeal

Summary

An applicant, representing himself, was denied a security clearance based on concerns under Guideline D (Sexual Behavior), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct). The appeal board affirmed the denial, concluding that the applicant's mitigating arguments were insufficient to outweigh the serious nature of his disqualifying conduct.

The board found that the judge reasonably weighed the evidence, determining that the disqualifying conduct was both serious and lengthy. The applicant's request for a probationary clearance was also denied, as the board lacks the authority to grant conditional clearances.

Ultimately, the applicant's mitigating evidence was deemed insufficient to overcome the government's security concerns, leading to the denial of his security clearance.

Conditions Referenced

Disqualifying

AG DraisedSexual Behavior
AG EraisedPersonal Conduct
AG JraisedCriminal Conduct

Key Rule Quoted

“An applicant is not entitled to a delayed or deferred adjudication of his or her security eligibility.”
— ISCR Case No. 01-07018 at 10 (App. Bd. Dec. 6, 2005)

Procedural Posture

SOR issuedJan 10, 2007
Answer filed—
Hearing heldNov 1, 2007
Decision dateFeb 28, 2008

Cite For

Insufficient Mitigation Under Guidelines D, E, and J
Affirmation of Denial Based on Serious Disqualifying Conduct
Limitations on Granting Conditional or Probationary Clearances

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 by an Administrative Judge based on security concerns under Guidelines E, J, and D. The applicant argued that the Judge erred in not finding mitigation for the concerns raised. The Board affirmed the Judge's decision, finding no harmful error in the weighing of evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMartin H. Mogul — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline JGuideline D

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge erred by concluding that the security concerns raised under Guidelines E, J, and D had not been mitigated.

Why the Board ruled this way

The Board found that the Judge reasonably weighed the mitigating evidence against the disqualifying conduct and concluded that the evidence presented by the Applicant was insufficient to mitigate the security concerns.

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

Jean E. Smallin
William S. Fields
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 E; Guideline J; Guideline D DIGEST: An applicant is not entitled to a delayed or deferred adjudication of his or her security eligibility. A review of the decision indicates that the Judge weighed the mitigating evidence against the length and seriousness of the disqualifying conduct. Adverse decision affirmed. CASENO: 06-22044.a1 DATE: 02/28/2008 DATE: February 28, 2008 In Re: ------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-22044

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 January 10, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline E (Personal Conduct), Guideline J (Criminal Conduct) and Guideline D (Sexual Behavior) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 1, 2007, after the hearing, Administrative Judge Martin H. Mogul denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge erred by concluding that the security concerns raised under Guidelines E, J and D had not been mitigated. Applicant argues that the Judge’s adverse decision should be reversed because he voluntarily admitted to the issues raised in the SOR and those issues would not have become known if not for his disclosures. In support of his contention, Applicant essentially reargues the facts in his case and states that his mistakes are in the past and he has demonstrated a new sense of trustworthiness. Alternatively, Applicant asks that the Board grant him a probationary clearance, subject to random drug testing and counseling. Applicant’s arguments do not demonstrate that the Judge erred. An applicant is not entitled to a delayed or deferred adjudication of his or her security eligibility. See, e.g., ISCR Case No. 01-07018 at 10 (App. Bd. Dec. 6, 2005). Likewise, the Board does not have authority to grant a clearance on a conditional or probationary basis. See, e.g., ISCR Case No 04-04302 at 5 (App. Bd. Jun. 30, 2005); ISCR Case No. 03-17410 at 4 (App. Bd. Apr. 12, 2005). Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. 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. 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. See, e.g., ISCR Case No. 06-11172 at 2 (App. Bd. Sep. 4, 2007). A review of the decision indicates that 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. The Judge reasonably explained why the evidence which Applicant had presented in mitigation was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. The favorable record evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. Given the record that was before him, the Judge’s ultimate unfavorable security clearance decision under Guidelines E, J and D is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board