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ISCR 14-03838.a1: Guideline D security clearance appeal, denied (2016) · CASE

ISCR Case 14-03838.a1denied

Case headnote

ISCR Case No. 14-03838.a1

May 6, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A male applicant in his thirties was denied a security clearance due to concerns under Guideline D (Sexual Behavior), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct). These concerns arose from his involvement with a 15-year-old girl, which resulted in a conviction for contributing to the delinquency of a minor.

The denial was based on the applicant's criminal conviction and his demeanor during the hearing. The judge noted the applicant's nonchalant and evasive responses, which suggested a lack of seriousness regarding his actions and undermined his credibility. The applicant did not successfully challenge the judge's findings regarding impartiality or credibility.

Ultimately, the appeal board affirmed the denial, highlighting the applicant's poor judgment and lack of contrition as key factors. The board concluded that these issues presented an unacceptable security risk, leading to the denial of his security clearance.

Conditions referenced

Disqualifying

JraisedCriminal Activity
EraisedPersonal Conduct
DraisedSexual Behavior

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 issuedApr 26, 2015
Answer filed—
Hearing heldFeb 25, 2016
Decision dateMay 6, 2016

Cite for

Credibility Determinations in Security Clearance Cases
Impact of Criminal Convictions on Security Clearance Eligibility
Importance of Demeanor and Contrition in 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 a denial of a security clearance based on concerns under Guideline J, E, and D. The Applicant argued bias, errors in credibility determination, and improper weighing of evidence. The Board affirmed the decision, finding no harmful errors in the Judge's determinations.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMichael H. Leonard denied the clearance

Decided ona hearing

Guidelines belowGuideline JGuideline EGuideline D

What the Board reviewed

Judge bias or partiality, raised by the applicantRejected
Applicant contended that the Judge was biased against him.
Credibility determination, raised by the applicantRejected
Applicant argued that the Judge erred in his credibility determination.
Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant claimed that the Judge failed properly to weigh the evidence.

Why the Board ruled this way

The Board found no evidence contradicting the Judge's credibility determination and concluded that the Judge's assessment of the Applicant's demeanor was reasonable. The Board also determined that the Applicant did not demonstrate bias or misweighing of evidence by the Judge.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Ra’anan (Chair)
James E. Moody
James F. Duffy

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; Guideline D DIGEST: We give deference to a Judge’s credibility determinations. Our deference has limits, as in cases in which the record contains evidence that contradicts the Judge’s credibility determination. In this case, we find nothing in the record that would contradict the Judge’s assessment of Applicant’s demeanor. Some of his testimony might have sounded evasive, suggesting that he did not view his circumstances with the appropriate seriousness. We find no reason to disturb the Judge’s credibility determination. Moreover, we conclude that Applicant has not rebutted the presumption that the Judge was impartial. Adverse decision affirmed. CASENO: 14-03838.a1 DATE: 05/06/2016 DATE: May 6, 2016 In Re: ---------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-03838

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Matthew E. Hughes, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On April 26, 2015, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline J (Criminal Activity), Guideline E (Personal Conduct), and Guideline D (Sexual Behavior) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 25, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Michael H. Leonard 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 was biased against him; whether the Judge erred in his credibility determination; and whether the Judge failed properly to weigh the evidence. Consistent with the following, we affirm. The Judge’s Findings of Fact In mid-2013, Applicant, who was in his thirties and held a security clearance at the time, became involved with a 15 year-old girl. The girl’s mother introduced her to him and provided Applicant with the girl’s phone number. Applicant and the girl exchanged text messages. At some point, Applicant received a text message from someone, perhaps the girl’s aunt, advising him of the child’s age. He subsequently received another, apparently from the mother, telling him that he could continue communicating with the girl. The two eventually met at a restaurant. Applicant and the girl went to Applicant’s car, where they kissed, and Applicant fondled her above the waist. The girl’s father notified law enforcement, and Applicant was eventually convicted of contributing to the delinquency of a minor. He received a suspended six-month sentence to confinement. He served his sentence without incident. Applicant cooperated with law enforcement in the investigation of the case. He disclosed it on his security clearance application (SCA) and provided court documents during the course of the clearance investigation. The Judge’s Analysis The Judge noted Applicant’s cooperation with authorities investigating the case and his voluntary reporting of it on his SCA. He stated, however, that he had “serious doubts” about Applicant’s judgment and self-control. Decision at 6. He stated that Applicant pursued a relationship with a girl despite knowing that she was half his age. He also stated that he had observed Applicant’s demeanor during the hearing and that he appeared “too nonchalant about his overall situation, and he was not particularly contrite.” Id.

DISCUSSION

Applicant contends that the Judge’s assessment of his demeanor was not based on anything in the record but, to the contrary, was the result of bias. He argues that the Judge’s opinion of him (or of the offense of which he was convicted) may have predisposed him to render an adverse decision. We give deference to a Judge’s credibility determinations. Directive ¶ E3.1.32.1. This is because the Appeal Board does not view a witness’s demeanor or observe the witness as he or she provides testimony. Our deference has limits, of course, as in cases in which the record contains evidence that contradicts the Judge’s credibility determination. See, e.g., ISCR Case No. 14-01894 at 6 (App. Bd. Aug. 18, 2015). In this case, however, we find nothing in the record that would contradict the Judge’s assessment of Applicant’s demeanor. Some of his testimony might have sounded evasive, suggesting that he did not view his circumstances with the appropriate seriousness.1 We find no reason to disturb the Judge’s credibility determination. Moreover, we conclude that Applicant has not rebutted the presumption that the Judge was impartial. See, e. g., ISCR Case No. 14-03108 at 3 (App. Bd. May 20, 2015). His argument that the Judge’s adverse decision is explicable only as a result of an inflexible predisposition against granting Applicant a clearance is not supported by anything in the record. Adverse rulings alone do not demonstrate judicial bias. See, e.g., Bixler v. Foster, 596 F.3d 751 at 762 (10th Cir. 2010). Applicant cites to record evidence that he believes is favorable to him, such as his cooperation with the investigation of the case, his having ceased his contact with the girl, his character references, etc. However, the Judge made findings about much of the evidence that Applicant has cited. Applicant’s arguments are not enough to rebut the presumption that the Judge considered all of the evidence in the record or to show that the Judge mis-weighed the evidence. See, e.g., ISCR Case No. 14-06093 at 3 (App. Bd. Dec. 4, 2015). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The 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 Decision is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board

FOOTNOTES

1 “[Department Counsel]: Your texts were sexual in nature? [Applicant]: I would assume so, but I don’t really, 100 percent recall. I’m going to–yes. We’ll go with yes.” Tr. at 36.