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ISCR 14-06532.a1: Guideline G security clearance appeal, denied (2017) · CASE

ISCR Case 14-06532.a1denied

Case headnote

ISCR Case No. 14-06532.a1

Jun 8, 2017· Hon. James E. Moody· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance based on concerns under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The initial decision to deny was affirmed on appeal.

Under Guideline J, disqualifying conditions were raised due to criminal conduct. While mitigating conditions were applied under Guideline G, the judge ultimately found this evidence insufficient to overcome the government's security concerns regarding the criminal conduct.

The applicant's disagreement with how the judge weighed the evidence did not demonstrate that the decision was arbitrary or capricious. Consequently, the security clearance was denied.

Conditions referenced

Disqualifying

Guideline JraisedCriminal Conduct

Mitigating

Guideline GappliedAlcohol Consumption

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 issuedDec 2, 2015
Answer filed—Applicant requested a decision on the administrative record.
Hearing heldFeb 22, 2017Decision made by Judge Carol G. Ricciardello.
Decision dateJun 8, 2017Appeal affirmed.

Cite for

Weighing of Mitigating Evidence Against Disqualifying Conduct Under Guideline J
Insufficient Mitigating Evidence to Overcome Security Concerns
Standard for Granting Clearance Consistent with National Security Interests

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 G (Alcohol Consumption) and Guideline J (Criminal Conduct). The applicant argued that the Judge's decision was arbitrary and did not properly weigh the evidence. The Board affirmed the Judge's decision, finding it reasonable and supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCarol G. Ricciardello denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline GGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argued that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board concluded that the Judge reasonably weighed the mitigating evidence against the disqualifying conduct and articulated a satisfactory explanation for the decision. The Judge's findings were supported by substantial evidence and were not arbitrary or capricious.

Standard of review applied

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

Appeal Board panel

James E. Moody
James F. Duffy
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 G; Guideline J DIGEST: In this case, the Judge reasonably weighed the available mitigating evidence against the length and seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. She found in favor of Applicant under Guideline G and as to one of the SOR factual allegations under Guideline J. However, she reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. Adverse decision affirmed. CASENO: 14-06532.a1 DATE: 06/08/2017 DATE: June 8, 2017 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-06532

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On December 2, 2015, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the administrative record. On February 22, 2017, after considering the record, Defense Office of Hearings and Appeals Administrative Judge Carol G. Ricciardello denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse decision is arbitrary, capricious or contrary to law. Applicant requested that his case be decided on the written record and then did not respond to the government’s File of Relevant Material (FORM). In his appeal brief he states that the Judge’s decision was “made in error and hastily” and recites some of the underlying facts in his case, implying that the Judge did not correctly weigh the evidence. He also presents some new evidence, which the Board cannot consider on appeal. See Directive ¶ E3.1.29. Applicant’s presentation does not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law.

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. 15-02659 at 2 (App. Bd. Apr. 28, 2017). In this case, the Judge reasonably weighed the available mitigating evidence against the length and seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. Decision at 4-7. She found in favor of Applicant under Guideline G and as to one of the SOR factual allegations under Guideline J. However, she reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns. Id. The Board does not review a case de novo. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the decision. “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.” Therefore, the Judge’s unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge is AFFIRMED. Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board