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ISCR Case 08-00632 — CASE

ISCR Case 08-00632denied

Case Headnote

ISCR Case No. 08-00632

Mar 2, 2009· Hon. Michael D. Hipple· appeal

Summary

A retired Air Force field engineer was denied a security clearance under Guideline J (Criminal Conduct) due to a history of voyeurism and invasion of privacy. These actions raised significant security concerns, specifically citing disqualifying conditions J1 and J2.

While the applicant presented claims of rehabilitation, the judge determined these were insufficient to mitigate the established concerns. The judge also found the applicant's testimony to be confusing and contradictory, which negatively impacted his credibility during the proceedings.

Ultimately, despite the applicant's efforts to demonstrate reform, the nature of the past offenses and the lack of credible evidence for rehabilitation led to the denial of the security clearance. Mitigating condition J3 was considered but not applied due to these factors.

Conditions Referenced

Disqualifying

J1raisedCriminal Conduct
J2raisedA Single Serious Crime or Multiple Lesser Offenses

Mitigating

J3rejectedEvidence of Successful RehabilitationThe judge found insufficient evidence of successful rehabilitation despite the applicant's participation in a church program.

Key Rule Quoted

“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 issuedMay 14, 2008
Answer filed—
Hearing heldDec 23, 2008
Decision dateMar 2, 2009

Cite For

Credibility Determinations in Security Clearance Cases
Insufficient Evidence of Rehabilitation Under Guideline J
Impact of Criminal Conduct on Security Clearance Eligibility

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 due to security concerns under Guideline J (Criminal Conduct). The applicant argued that the Judge's findings were not supported by substantial evidence and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no error in the Judge's findings or conclusions.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPaul J. Mason — denied the clearance

Decided ona hearing

Guidelines belowGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge's findings of fact were not supported by substantial record evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's material findings of security concern were supported by substantial record evidence and that the Judge's decision was not arbitrary, capricious, or contrary to law.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael D. Hipple
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 J DIGEST: The Judge’s material findings of security concern are supported by substantial record evidence. Adverse decision affirmed. CASENO: 08-00632 DATE: 03/02/2009 DATE: March 2, 2009 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-00632

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 May 14, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline J (Criminal Conduct) of Department Applicant Exhibit E, DD Form 214, reflects that Applicant retired from the Air Force after 21 years of service. 10 U.S.C. § 815. of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On December 23, 2008, after the hearing, Administrative Judge Paul J. Mason denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether certain of the Judge’s findings of fact were supported by substantial record evidence and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is field engineer for a defense contractor. He was honorably discharged from the Air Force in 2000. While on active duty, in the mid-1980s, Applicant “[o]ntwo or three occasions . . . entered the shower area of the female barracks . . . for the purpose of secretly watching women take showers.” Decision at 3. He subsequently received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ.) The punishment consisted of a suspended reduction in grade, forfeiture of $200 pay per month for two months, and thirty days of correctional custody. In October 2005, after his retirement from active duty, Applicant was arrested on an Air Force base for the offenses of invasion of privacy (looking into the window of a female’s on-base guestroom without her knowledge) and resisting arrest. He pled guilty to invasion of privacy and the second charge was dropped. He was fined $375. After the case, Applicant attended a fellowship sponsored by his church, the content of which was sexual contact temptations. It did not specifically address voyeurism, nor was it part of a court- ordered treatment program. Among other things, the program addressed ways of avoiding such temptations. Applicant discussed his misconduct with his fellow attendees. Applicant’s supervisors and fellow workers rate his job performance highly. In evaluating Applicant’s documentary evidence of good character, the Judge stated that these documents do not reflect that the persons writing them were aware of Applicant’s misconduct. The Board concludes that the Judge’s material findings of security concern are supported by substantial record evidence. See Directive ¶ E3.1.32.1. (Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.”) Applicant argues that the Judge mistakenly believed that the church program he attended was mandatory rather than voluntary. However, neither the record nor the Judge’s decision provides a basis to conclude that the Judge erred in his treatment of this matter. The Judge found that Applicant’s testimony concerning this program was confusing, citing, for example, Applicant’s apparently contradictory statements as to whether he had informed his fellow congregants of his conviction. The record provides no basis to conclude that the Judge mis-weighed the evidence. See ISCR Case No. 08-07005 at 2 (App. Bd. Feb. 9, 2009) (“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”). The facts and circumstances of the fellowship meeting, contradictory testimony by Applicant concerning it, and Applicant’s demeanor while testifying are proper matters for the Judge to consider, both as to a credibility determination and to the question of rehabilitation. See Directive ¶ E3.1.32 (The Board defers to the Judge’s credibility determinations); and Directive ¶ E2.32 (d) (Guideline J security concerns can be mitigated by an Applicant’s demonstrating that “there is evidence of successful rehabilitation”). The record demonstrates that the Judge has considered the entire record, including the matters submitted by Applicant. The Judge has drawn a rational connection between the facts found and his ultimate adverse security clearance decision, both as regards the mitigating conditions and the whole- person factors. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). See also 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 national interest to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 8. See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security’”). The Board has no authority to extend Applicant’s security clearance until the beginning of the next year due to national economic conditions, as requested by Applicant.

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple 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