CASEClearance Adjudication Search EngineCASE

Loading case…

ISCR Case 09-03010.a1 — CASE

ISCR Case 09-03010.a1denied

Case Headnote

ISCR Case No. 09-03010.a1

Apr 16, 2010· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline E (Personal Conduct) due to adverse findings related to his military service. The primary disqualifying conditions stemmed from his absence without leave (AWOL) from 2003 to 2005, which resulted in a discharge under other than honorable conditions.

The applicant presented mitigating evidence, including claims of personal transformation and stable employment since his military separation. However, the judges determined that this evidence was insufficient to outweigh the serious nature of his past conduct.

Ultimately, the adjudicators found that the disqualifying conduct under Guideline E (Personal Conduct) was not adequately mitigated. Therefore, the security clearance was denied.

Conditions Referenced

Disqualifying

E2.A5.1raisedPersonal Conduct

Mitigating

E2.A5.2rejectedMitigating ConditionsThe judge provided detailed reasoning on why the mitigating conditions did not apply.

Key Rule Quoted

“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.”

Procedural Posture

SOR issuedSep 11, 2009
Answer filed—
Hearing heldJan 20, 2010
Decision dateApr 16, 2010

Cite For

Weighing of Mitigating Evidence Under Guideline E
Insufficient Mitigating Evidence to Overcome Disqualifying Conduct
Self-representation in Security Clearance Hearings

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 after being denied due to concerns under Guideline E. The applicant argued procedural due process and that the Judge's decision was arbitrary. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMark Harvey — denied the clearance

Decided ona hearing

Guidelines belowGuideline E

What the Board reviewed

Procedural error — raised by the applicantRejected
Applicant claimed he was denied procedural due process.
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 no harmful error in the Judge's decision, affirming that the Judge properly weighed the evidence and followed required procedures.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Jeffrey D. Billett
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 DIGEST: 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. Adverse decision affirmed CASENO: 09-03010.a1 DATE: 04/16/2010 DATE: April 16, 2010 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-03010

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 September 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 Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On January 20, 2010, after the hearing, Administrative Judge Mark Harvey denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issues on appeal: (a) whether Applicant was denied procedural due process and (2) 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 that Applicant was on active duty with the Army and went AWOL in 2003. He found that Applicant remained away from his military unit until 2005 when his AWOL status was terminated by apprehension by civilian authorities. Applicant was ultimately discharged from the service with an “under other than honorable conditions discharge.” After weighing the disqualifying and mitigating evidence, the Judge concluded that Applicant had not fully mitigated all security concerns. Applicant states that he was ill prepared for what took place at the hearing and is now better prepared to plead his case. He would like the chance to plead his case again. This raises the issue of whether Applicant, acting as his own counsel, made a knowledgeable decision to represent himself, and whether or not he was capable of acting effectively in concert with his own interests during the hearing. The Board has reviewed the transcript of the hearing, and concludes that the Judge asked pertinent questions of Applicant and made an adequate inquiry into Applicant’s ability to represent himself before the commencement of the evidentiary portion of the hearing. The transcript also indicates that Applicant had no apparent difficulty understanding the nature of the proceedings and performed reasonably in presenting his case. At no time did Applicant object to going forward without an attorney or other representative. Under these circumstances, there is no basis for granting Applicant an additional opportunity to present his case. Applicant argues that he has mitigated the government’s case against him. He states that in the five years since his discharge from the military, he has grown up and changed his life. He points to his stable employment as an example of his personal transformation. This argument fails 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 and considered the possible application of relevant conditions and factors. He discussed the applicability of numerous mitigating conditions under Guideline E at some length, but indicated with considerable detail why those Guideline E mitigating conditions could not be invoked in this case to alleviate the government’s security concerns. Thus, the Judge’s adverse security clearance 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board