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ISCR 06-25528.a1: Guideline J security clearance appeal, denied (2009) · CASE

ISCR Case 06-25528.a1denied

Case headnote

ISCR Case No. 06-25528.a1

Nov 13, 2009· Hon. Jeffrey D. Billett· appeal

Summary

A retired military E-7 was denied a security clearance under Guideline J (Criminal Conduct) due to a history of domestic violence and significant credibility issues during the investigation. The applicant had engaged in multiple instances of domestic violence spanning nearly two decades.

During the security clearance process, the applicant provided inconsistent and unbelievable statements, which undermined their credibility. The judge's determination regarding the applicant's lack of credibility was well-supported by the evidence presented in the record.

The appeal board reviewed the case and affirmed the initial denial. They specifically cited the applicant's inconsistent statements and the judge's supported credibility determination as key factors in upholding the decision to deny the security clearance.

Conditions referenced

Disqualifying

J1raisedCriminal Conduct

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 issuedApr 10, 2009
Answer filed—
Hearing heldAug 28, 2009
Decision dateNov 13, 2009

Cite for

Credibility Determinations Under Guideline J
Impact of Domestic Violence on Security Clearance Eligibility
Standard for Granting Security Clearances in Relation to 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 was from an adverse security clearance decision based on concerns under Guideline J (Criminal Conduct). The applicant raised issues regarding due process, credibility determinations, and the arbitrariness of the decision. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran denied the clearance

Decided ona hearing

Guidelines belowGuideline J

What the Board reviewed

Due-process / fairness, raised by the applicantRejected
Applicant contended that the Judge denied him due process by not allowing him to question a witness about the Lautenberg Amendment.
Credibility determination, raised by the applicantRejected
Applicant argued that the Judge's credibility determination was erroneous.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant claimed that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision, affirming that the Judge's conclusions were supported by substantial evidence and articulated a rational connection between the facts and the decision made.

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

Jeffrey D. Billett
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 J DIGEST: The Judge’s conclusion that Applicant and wife made inconsistent and otherwise unbelievable statements, including Applicant’s statement to the OPM investigator, is supported by the record. Adverse decision affirmed. CASENO: 06-25528.a1 DATE: 11/13/2009 DATE: November 13, 2009 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-25528

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 April 10, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline J (Criminal Conduct) of “Applicant’s testimony was evasive and inconsistent at times. I . . . find that some of his testimony was intentionally false. Of particular note was the testimony of Applicant and his wife that they had no memory of the 1988 incident in [Foreign Country] . . . It is not believable that neither party could remember [Applicant] striking his pregnant wife while she was holding their two-year-old child, causing her to fall to the ground, and dragging her along the side of the road.” Decision at 6. Additionally, the Board has considered Applicant’s description of an incident in 2007, given to a policeman on the scene, and compared it with Applicant’s later description of the same incident to the OPM investigator. These documents support the Judge’s conclusion about the mendacity of Applicant’s statement to the OPM official. Government Exhibit 2, Personal Subject Interview dated September 5, 2008; GE 4, Incident Report dated September 16, 2007. 18 U.S.C. § 922(g)(9). Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On August 28, 2009, after the hearing, Administrative Judge Edward W. Loughran denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge denied him due process; whether the Judge’s credibility determination was erroneous; and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge found that Applicant is currently employed by a Defense contractor. He served in the U.S. military from 1984 until 2004, retiring as an E-7. Between 1988 until 2007, Applicant engaged in six instances of domestic violence, though none resulted in prosecution or other disciplinary action beyond referral to the military Family Advocacy Program at his station or some anger management classes. The first instance occurred in July 1988 in a foreign country where Applicant was assigned, along with his family. Applicant and his wife argued on the side of a highway. Applicant hit, pushed, kicked and shoved his wife, who was pregnant at the time, causing her to fall to the ground. He then grabbed her jacket and dragged her along the side of the road. On another occasion he shoved her on the ground and pushed her against the house. In some of the incidents cited by the Judge, Applicant’s wife was an active participant in the affrays. Applicant received numerous awards during his military service, to include the Meritorious Service Medal, two Commendation Medals, six Good Conduct Medals, and the Bronze Star. Applicant takes issue with the Judge’s credibility determination. Specifically, he disagrees with the Judge’s conclusion that Applicant made an inconsistent statement to the OPM investigator. The Board has examined the Judge’s evaluation of Applicant’s credibility in light of the record as a whole and finds no reason to disturb it. The Judge’s conclusion that Applicant and his wife made inconsistent and otherwise unbelievable statements, including Applicant’s statement to the OPM investigator, is supported by the record. See Directive ¶ E3.1.32.1. Applicant contends that the Judge improperly denied him the opportunity to question a witness about the Lautenberg Amendment, which forbids gun ownership or use by persons convicted of domestic violence. The Board construes this to be a contention that the Judge denied Applicant due process. The record demonstrates that the Judge admitted a document summarizing the Amendment and its application to the military. However, the Judge did not permit Applicant to read it aloud during his questioning of a witness due to lack of relevance. Tr. at 34. The Judge’s ruling is sustainable. Even if there were error in this ruling, it would be harmless. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The Judge’s decision that “it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 10. “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).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, 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