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ISCR Case 08-06873 — CASE

ISCR Case 08-06873denied

Case Headnote

ISCR Case No. 08-06873

Dec 18, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A 51-year-old defense contractor with a Master's degree in Engineering was denied a security clearance under Guideline E (Personal Conduct). The denial stemmed from past sexual misconduct involving a minor while the applicant served as a Scout leader. This included multiple incidents of sexual contact and an abuse of trust, with the applicant also admitting to providing alcohol to the minor during these events.

Disqualifying conditions E2.A5.1.2 and E2.A5.2.1 were raised due to the serious nature of these actions. While mitigating conditions E2.A5.2.2 and E2.A5.2.3 were applied, and the applicant provided character references and a psychological evaluation, these were insufficient to overcome the concerns.

The judge emphasized the gravity of the past misconduct and, critically, noted a lack of evidence regarding the applicant's current interactions with minors. This absence of information raised concerns about potential vulnerability to coercion, ultimately leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

E2.A5.1.2raisedCriminal Conduct
E2.A5.2.1raisedPersonal Conduct

Mitigating

E2.A5.2.2rejectedThe Behavior Was Not Recent and the Applicant Has Demonstrated RehabilitationThe judge found the applicant's past misconduct too serious to mitigate based on character references and psychological evaluations.
E2.A5.2.3rejectedThe Applicant Has Acknowledged the Behavior and Has Taken Steps to Address ItThe judge concluded that acknowledgment alone did not mitigate the serious nature of the misconduct.

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 issuedMar 11, 2009
Answer filed—
Hearing heldOct 2, 2009Applicant requested a decision on the written record.
Decision dateDec 18, 2009

Cite For

Serious Nature of Past Misconduct Under Guideline E
Insufficient Evidence of Current Interactions with Minors
Rejection of Mitigating Conditions Based on Past Behavior

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 concerns under Guideline E related to the applicant's past misconduct as a Scout leader. The applicant raised issues regarding the weighing of evidence, the whole-person analysis, and the arbitrariness of the decision. The Board affirmed the denial, finding no harmful error in the Judge's decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran — denied the clearance

Decided onthe written record

Guidelines belowGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge mis-weighed favorable evidence, such as letters of reference and a psychological evaluation.
Whole-person analysis — raised by the applicantRejected
Applicant argued that the Judge's whole-person analysis was erroneous.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant claimed that the Judge's adverse security clearance decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's decision, affirming that the Judge articulated a satisfactory explanation for the denial of the security clearance, including a rational connection between the facts found and the choice 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

Michael Y. Ra’anan — Chair
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

APPEARANCES

DATE: December 18, 2009 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-06873

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 March 11, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On October 2, 2009, after considering the record, 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 mis-weighed the record evidence; whether the Judge’s whole-person analysis was erroneous; and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. Item 4 contains, inter alia, the two articles and the note, which was written by A and addressed to Applicant. It describes A’s anger over the molestation. The Judge stated that he considered the fact that the note was sent to Applicant but that he did not consider it for the truth of the matters contained therein. Decision at 2. The SOR alleged that Applicant continued as an adult Scout leader at least through 2005. Applicant admitted this allegation in his response to the SOR. The Judge found that Applicant is a 51-year-old employee of a defense contractor. He holds a Masters degree in Engineering. He is married with two children. Applicant has a long association with the Boy Scouts of America. He was a Scout as a youth and later served as an adult leader. From 1986 to 1987, while a Scout leader, Applicant engaged in sexual contact with a Boy Scout (A), who was 15 and 16 years old. Three of the incidents occurred during Scout-sponsored events and another four occurred either at Applicant’s home or on trips taken with the knowledge and consent of A’s parents. During several of the incidents, either Applicant or A or both had consumed alcohol. In fact, Applicant provided the alcohol on more than one occasion. Applicant met his wife in 1987. After that, he had no further sexual contact with A who, nevertheless, was an usher at Applicant’s wedding and babysat for Applicant’s older child. In 2003 Applicant received a phone call from an old girlfriend of A. “She told him that she was in possession of some letters that indicated that Applicant had sexually abused A. She asked to meet Applicant to discuss the letters.” Decision at 3. Later the same woman phoned Applicant’s wife, telling her about the molestation. Applicant subsequently received two envelopes in the mail, which contained articles about child abuse. The second envelope also contained a handwritten note.1 In 2004 Applicant admitted his sexual involvement with A to his wife and to government investigators. As a consequence, a government agency revoked Applicant’s access to Sensitive Compartmented Information (SCI). Applicant’s response to the SOR included a copy of his written appeal of the 2005 SCI denial. The appeal contains numerous letters praising Applicant’s character, job performance, loyalty, and reliability. It also contains letters from people who know Applicant through the Boy Scouts. These letters state that they trust Applicant with their children. “None of the letters stated that the authors were aware of Applicants’s sexual relationship with a [S]cout.” Id. at 5. The appeal also contained a psychological evaluation of Applicant, which concluded that he was not a pedophile and that there is little likelihood that anything like Applicant’s conduct with A would happen again. On appeal, Applicant appears to contend that the Judge either did not consider or that he mis- weighed favorable evidence, such as the letters of reference and the psychological evaluation. However, a Judge is presumed to have considered all the evidence in the record. See, e.g., ISCR Case No 07-00196 at 3 (App. Bd. Feb. 20, 2009); ISCR Case No. 07-00553 at 2 (App. Bd. May 23, 2008). Indeed, the Judge explicitly addressed the evidence cited by Applicant. However, he also provided a reasonable explanation for his conclusion that Applicant had failed to meet his burden of persuasion as to mitigation. The Judge noted the serious nature of Applicant’s misconduct, in that it involved multiple incidents in which he abused a position of trust and responsibility. He also noted a paucity of record evidence as to the current nature, if any, of Applicant’s interactions with A and that Applicant retains an association with the Boy Scouts, although the record provides no reason to believe that Scouting officials or parents are aware of his misconduct. The Judge concluded that Applicant remains vulnerable to pressure, coercion, exploitation, and duress. Applicant has provided no reason to believe that the Judge failed to consider record evidence or that he mis-weighed the evidence. After reviewing the record, the Board concludes that the Judge 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 9. “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: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, 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