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ISCR Case 10-05750.a1 — CASE

ISCR Case 10-05750.a1denied

Case Headnote

ISCR Case No. 10-05750.a1

Dec 8, 2011· Hon. Jeffrey D. Billett· appeal

Summary

An applicant representing himself was denied a security clearance due to concerns under Guideline H (Drug Involvement) and Guideline J (Criminal Conduct). The Board affirmed the Judge's decision, concluding that the applicant's mitigating evidence did not sufficiently outweigh the serious nature of his disqualifying conduct.

Specifically, the denial was based on disqualifying conditions AG ¶ 30 and AG ¶ 25. While mitigating condition AG ¶ 20 was considered, it was deemed insufficient. The Board found that the applicant's disqualifying conduct was serious, and substantial evidence supported the Judge's findings.

The applicant's arguments for reversal were found to be insufficient and did not demonstrate that the Judge's decision was arbitrary or capricious. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 30raisedCriminal Conduct
AG ¶ 25raisedDrug Involvement

Mitigating

AG ¶ 20rejectedMitigating ConditionsThe Judge weighed the mitigating evidence against the length and seriousness of the disqualifying conduct.

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 24, 2011
Answer filed—
Hearing heldSep 22, 2011
Decision dateDec 8, 2011

Cite For

Affirmation of Judge's Findings Based on Substantial Evidence
Insufficiency of Mitigating Evidence to Overcome Serious Disqualifying Conduct
Responsibility of the Applicant to Present Evidence to Mitigate Security Concerns

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 was filed by the applicant after the Administrative Judge denied his request for a security clearance based on concerns under Guideline J (Criminal Conduct) and Guideline H (Drug Involvement). 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 not arbitrary or capricious.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJuan J. Rivera — denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge’s adverse decision is arbitrary, capricious or contrary to law.

Why the Board ruled this way

The Board found that the Judge's material findings were supported by substantial record evidence and that the Judge reasonably weighed the evidence presented.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionBurden of persuasion

Appeal Board panel

Jeffrey D. Billett
Jean E. Smallin
William S. Fields

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 H DIGEST: The Board looks to Judge’s decision as a whole in evaluating his findings and conclusions. Judge’s material findings were supported by substantial record evidence. Adverse decision affirmed. CASE NO: 10-05750.a1 DATE: 12/08/2011 DATE: December 8, 2011 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-05750

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 24, 2011, 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 H (Drug Involvement) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 22, 2011, after the hearing, Administrative Judge Juan J. Rivera denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse clearance decision is arbitrary, capricious or contrary to law. Applicant contends that the Judge’s adverse decision should be reversed because the evidence presented at the hearing was sufficient to mitigate the government’s security concerns. In support of this contention, he argues that the Judge mis-characterized some of the evidence, making the disqualifying conduct look more serious than it actually was. Applicant’s argument does not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. The Board does not review sentences or passages in a Judge’s decision in isolation. Rather, it looks at the whole of the Judge’s decision to discern what the Judge found and concluded. See, e.g., ISCR Case No. 08-08721 at 3 (App. Bd. Oct. 20, 2011). After reviewing the record that was before the Judge, the Board concludes that his material findings of security concern are based on substantial evidence, or constitute reasonable characterizations or inferences that could be drawn from that record. Accordingly, the Judge’s material findings of security concern are sustainable. See, e.g., ISCR Case No. 09-07424 at 2 (App. Bd. Aug. 16, 2011). The Applicant is responsible for presenting witnesses and other evidence to rebut, extenuate or mitigate facts admitted by the Applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable decision. See Directive ¶ E3.1.15. 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. 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. 09-07424, supra at 2. In reaching his decision, the Judge considered the totality of Applicant’s situation, including the circumstances surrounding the incidents in question, and the fact that Applicant had taken responsibility for his mistakes and expressed remorse. Decision at 2-4. He weighed the mitigating evidence against the length and seriousness of the disqualifying conduct, considered the possible application of relevant conditions and factors, and reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. Decision at 5-9. The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for his 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 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). Therefore, the Judge’s unfavorable 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: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board