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ISCR Case 10-05039.a1 — CASE

ISCR Case 10-05039.a1denied

Case Headnote

ISCR Case No. 10-05039.a1

Oct 17, 2011· Hon. Jeffrey D. Billett· appeal

Summary

An electrical and optical engineer was denied a security clearance under Guidelines D (Sexual Behavior), G (Alcohol Consumption), and J (Criminal Conduct). The denial stemmed from a conviction for indecent exposure, which occurred after excessive alcohol consumption.

The judges determined that the applicant's actions demonstrated poor judgment and raised significant security concerns. Specifically, the indecent exposure conviction was a primary concern, as was the excessive alcohol consumption that preceded it.

Furthermore, the applicant's credibility was undermined by inconsistent statements made regarding the incident. These factors collectively led to the denial of the applicant's security clearance.

Conditions Referenced

Disqualifying

AG ¶ 15raisedCriminal Conduct
AG ¶ 14raisedSexual Behavior
AG ¶ 21raisedAlcohol Consumption

Key Rule Quoted

“Disposition of a criminal case in a favorable or somewhat favorable fashion does not preclude a Judge from finding that the applicant engaged in the underlying conduct.”

Procedural Posture

SOR issuedDec 7, 2010
Answer filed—
Hearing heldJul 28, 2011
Decision dateOct 17, 2011

Cite For

Denial Based on Criminal Conduct Under Guideline J
Impact of Alcohol Consumption on Security Clearance Decisions
Credibility Issues Arising From Inconsistent Statements

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 for a security clearance who was denied due to concerns under Guidelines J, D, and G related to a criminal conviction for indecent exposure. The applicant argued that the Judge did not properly weigh the evidence and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and consistent with national security interests.

Appealed bythe applicant

Applicant representationAttorney

Judge belowThomas M. Crean — denied the clearance

Decided ona hearing

Guidelines belowGuideline JGuideline DGuideline G

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge did not properly weigh the record evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
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 decision was supported by substantial evidence and articulated a satisfactory explanation for the decision, 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

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 J; Guideline G; Guideline G DIGEST: Disposition of a criminal case in a favorable or somewhat favorable fashion does not preclude a Judge from finding that the applicant engaged in the underlying conduct. Adverse decision affirmed. CASENO: 10-05039.a1 DATE: 10/17/2011 DATE: October 17, 2011 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-05039

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ronald C. Sykstus, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On December 7, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline J (Criminal Conduct), Guideline D (Sexual Behavior), and Guideline G (Alcohol Consumption) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On July 28, 2011, after the hearing, Administrative Judge Thomas M. Crean 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’s decision ran contrary to the greater weight of the record evidence and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: Applicant is an electrical and optical engineer. He holds bachelor’s and master’s degrees in engineering. He also has a master’s degree in business administration. While in college, he would consume five to ten drinks containing vodka about one night during weekends. He did not typically drink during the week because he did not want to impair his academic work. He currently is general manager of a local restaurant. He is also a “business development specialist” for a university. Decision at 3. This position requires him to have a security clearance. In 2006 Applicant began working for a Defense contractor, receiving a security clearance in 2007. However, his access to classified information was challenged in 2009, due to an incident that occurred while he was on a business trip in another state. Applicant had been staying in a condo during the trip. At the trip’s conclusion, after he had completed his assigned duties, he consumed six or seven beers and five or six drinks containing vodka, over a three-hour period. He sat on the deck of the condo. A family of three–husband, wife, and five-year-old daughter–were on the deck immediately adjacent to Applicant. The parents subsequently reported to the police that Applicant had exposed himself to them and to their daughter. When he did so, they went into their condo but noticed Applicant looking in at them through a window.1 Authorities charged Applicant with indecent exposure to a person under 16. He pled nolo contendere to the lesser offense of indecent exposure. The court sentenced him to probation and ordered him to undergo drug, alcohol, and psychological evaluation and treatment if necessary. He does not have to register as a sex offender. An alcohol abuse evaluation concluded that he did not have an alcohol-related problem, though it did recommend that Applicant take an “alcohol-awareness” class, which he did. His psychological evaluation recommended no further treatment, though the psychologist stated that Applicant “would consistently rank in the mild risk category, particularly if he is alcohol free or at least mindful of his use of an intoxicant for any reason.” Decision at 4. Applicant has eased off on his use of alcohol since the incident. He now consumes five to eight drinks a month, though he continued drinking heavily following the incident in question, until April 2010. Friends and co-workers believe that Applicant is trustworthy, moderate in his consumption of alcohol, and a good employee. A fellow employee who had been with Applicant on the trip in question stated at the hearing that the allegations were not believable. In his analysis, the Judge noted that Applicant’s security significant conduct was related to his consumption of alcohol. However, Applicant was continuing to drink, sometimes to excess, at the close of the record. “[T]here is nothing in the record to establish a pattern of responsible use of alcohol.” Decision at 8. He stated that the circumstances did not preclude a recurrence of the security significant conduct. In the whole-person analysis the Judge stated: Applicant drank to excess and exposed his genitals in the presence of a five year old girl resulting in a criminal conviction for indecent exposure. His consumption of alcohol was reckless and irresponsible and showed poor judgment and a failure to control impulses. The failure to control impulses led to the inappropriate sexual behavior and criminal conviction. His continued consumption of alcohol could again lead to a failure to control his impulses. This raises questions concerning his judgment, reliability, and trustworthiness. Decision at 9. Applicant contends that the Judge did not properly weigh the record evidence. He calls attention to Applicant’s testimony denying guilt and to other evidence that he believes to be exculpatory. He contends that the evidence against Applicant, particularly affidavits prepared by the husband and wife witnesses, were not consistent or believable. He also notes Applicant’s good academic and work record and the positive opinions of his character witnesses. We have examined the affidavits, in light of the record as a whole. They are detailed, internally consistent, and, on the whole, consistent with each other. The inconsistencies cited by Applicant are not so substantial as to undermine the Judge’s weighing of the record evidence. Applicant’s brief is not sufficient to demonstrate that the Judge weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. Applicant also contends that evidence of his plea of nolo contendere to a lesser offense suggests that he is factually innocent. He argues that, if he had been guilty, prosecutors would have proved up the greater offense charged. However, prosecutors might agree to a defendant’s plea to a lesser offense for any number of reasons other than the defendant’s factual innocence. Disposition of a criminal case that is in some way favorable to an applicant, such as dropped charges or an acquittal, does not preclude a Judge from finding that the applicant engaged in the underlying conduct. See, e.g., ISCR Case No. 08-02299 at 4 (App. Bd. Nov. 12, 2010). Additionally, Applicant made inconsistent statements himself concerning the incident2 and has provided no possible motivation for the witnesses to have fabricated the evidence against him. To the extent that Applicant is challenging the factual sufficiency of the Judge’s findings, the record demonstrates that the Judge’s material findings of security concern are supported by substantial record evidence. See, e.g., ISCR Case No. 09-05399 at 3 (App. Bd. Jan. 11, 2011). Applicant states that, in the alternative to an outright reversal of the Judge’s decision, he “would be amenable to a three year probationary period where he would agree not to contest any security clearance revocation during the probationary period for any reason” in order to demonstrate his security worthiness. Applicant Brief at 5. The Appeal Board has no authority to grant a conditional or probationary clearance. See, e.g., ISCR Case No. 08-04492 at 3 (App. Bd. May 20, 2011). The record supports a conclusion 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 adverse decision is sustainable on this record. “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). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

ORDER

The Judge’s adverse security clearance decision 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

FOOTNOTES

1 See Government Exhibit (GE) 4, Sheriff’s Report, dated June 24, 2009. This document contains affidavits by the husband and wife, as well as a summary by the reporting officer. The summary states that the three family members noticed Applicant expose himself while standing on an adjoining deck. When they went inside to report the incident, the wife “noticed the man peeking around the corner into the windows as they called the Sheriff’s Office. While they were waiting for law enforcement to arrive, [husband and wife] noticed the man walk by their patio and stop[.] He looked in the window and was staring at [wife] and the five year old daughter. [Wife] then closed the blinds so the man would go away.”

2 GE 4 cites two instances in which Applicant made inconsistent statements to the investigating officers. One instance concerned the possible reasons for Applicant’s having experienced a sexual arousal. The other instance concerned Applicant’s conduct immediately following the incident. He initially corroborated the family’s statements that he had looked through their window at them after they went inside. Later on in the interview, however, he advised that he had immediately gone inside his own condo.