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ISCR Case 08-02464.a1 — CASE

ISCR Case 08-02464.a1denied

Case Headnote

ISCR Case No. 08-02464.a1

Jul 16, 2009· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, representing herself, was denied a clearance under Guideline J (Criminal Conduct) and Guideline E (Personal Conduct). The denial was based on two primary unmitigated concerns.

First, the applicant had a history of multiple arrests and pleaded guilty to associated charges. Second, the applicant falsified her security clearance application by intentionally omitting a prior arrest. Neither of these issues was mitigated by the applicant.

The judge's findings regarding the unmitigated criminal conduct and falsification were upheld on appeal, with the board affirming the decision to deny the security clearance.

Conditions Referenced

Disqualifying

JraisedCriminal Conduct
EraisedPersonal Conduct

Key Rule Quoted

“The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision.”
— ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007)

Procedural Posture

SOR issuedOct 17, 2008
Answer filed—
Hearing heldApr 29, 2009
Decision dateJul 16, 2009

Cite For

Affirmation of Adverse Findings Based on Criminal Conduct Under Guideline J
Affirmation of Adverse Findings Based on Falsification of Security Clearance Application Under Guideline E
Presumption of Regularity and Good Faith in Judges' Decisions.

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 a denial of a security clearance based on criminal conduct and personal conduct. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and properly reasoned.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMary E. Henry — denied the clearance

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 decision 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 that the Judge properly weighed the evidence and made appropriate findings regarding the applicant's conduct.

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
William S. Fields
Jean E. Smallin

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; Guideline E DIGEST: Applicant failed to rebut the presumption of regularity and good faith on the part of the Judge. Adverse decision affirmed. CASENO: 08-02464.a1 DATE: 07/16/2009 DATE: July 16, 2009 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-02464

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 October 17, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline J(Criminal Conduct) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On April 29, 2009 after the hearing, Administrative Judge Mary E. Henry denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable decision. The Judge found, inter alia, that Applicant was arrested five times between 1992 and 2007. She found that Applicant pled guilty in four of the incidents to one or more of the charges against her. The Judge concluded that this criminal conduct was not mitigated. The Judge also found that Applicant falsified a 2005 security clearance application by leaving off a 1999 arrest. The Judge concluded that the falsification was not mitigated. The first section of Applicant’s appeal brief contains her arguments concerning why a case against her has not been established under Guideline J, or why the Judge’s adverse findings on the allegations under Guideline J are otherwise improper. Applicant’s brief is not a model of clarity, but a fair reading of same reveals that the arguments Applicant proffers regarding the Guideline J allegations are couched in terms of why the government failed to establish that she falsified her security clearance application with regard to the underlying criminal conduct. Any issue regarding the content of Applicant’s security clearance application would be, as far as the SOR in this case is concerned, a matter for consideration under Guideline E, as opposed to Guideline J. Also, only one of the five Guideline J allegations involves underlying criminal conduct that is the subject of the lone SOR allegation alleging falsification under Guideline E. There is no presumption of error below. Applicant’s arguments about failure to establish falsifications do nothing to establish error regarding the Judge’s Guideline J findings. Applicant makes reference to matters directly related to Guideline J only when talking about allegation 1.e of the SOR, an allegation dealing with possession of a controlled substance. There, Applicant maintains that the Judge failed to fully explain the reasons for her adverse finding. The Applicant also mentions matters she considers mitigating, such as negative results on post-conviction drug tests. After a review of the Judge’s decision, the Board concludes that the Judge adequately explained her reasons for her adverse finding under SOR allegation 1.e. The matters that Applicant cites in mitigation do not establish that the Judge’s conclusion was arbitrary, capricious, or contrary to law. In the remainder of her brief, Applicant states: (a) the government did not prove the falsification allegation under Guideline E against her; (b) additional allegations and information were presented that were not addressed in the SOR and should not have been used adversely against Applicant; and (c) the Judge improperly used parts of the record to influence her adverse decision on allegations based on other parts of the record. Applicant has failed to establish error on the part of the Judge. 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. See, e.g., ISCR Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007). A party’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. 06-17409 at 3 (App. Bd. Oct. 12, 2007). In this case, the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct under Guideline E and considered the possible application of relevant conditions and factors. However, the Judge concluded that there was insufficient evidence to mitigate the Guideline E allegation. This conclusion is reasonably supported by the record. Applicant has failed to establish that the Judge considered matters not specifically alleged in the SOR improperly or that the Judge was unduly influenced by negative aspects of the record when evaluating other parts of the record. There is a presumption in favor of regularity and good faith on the part of DOHA Judges as they engage in the process of deciding cases. See, e.g., ISCR Case No. 99-0019 at 5 (App. Bd. Nov. 22, 1999). After considering the Judge’s decision, the Board concludes that the Judge’s decision made proper use of evidence not directly linked to the SOR allegations, and used such evidence appropriately in her whole person analysis. The Judge’s decision complies with the requirements of Directive ¶ E2.2.1 in that the Judge considered the totality of Applicant’s conduct in reaching her decision, and she was not improperly swayed by any particular portion of the record in reaching her findings and conclusions. See, ISCR Case No. 05-03948 at 3-4 (App. Bd. May 21, 2007). The Judge’s adverse decision is sustainable.

ORDER

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