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ISCR 15-02895.a1: Guideline D security clearance appeal, denied (2017) · CASE

ISCR Case 15-02895.a1denied

Case headnote

ISCR Case No. 15-02895.a1

Jun 23, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied clearance under Guidelines D (Sexual Behavior), E (Personal Conduct), and J (Criminal Conduct). The denial stemmed primarily from serious misconduct involving the inappropriate and secret recording of minors.

The judge found the applicant's actions to be recent and serious, noting multiple instances of misconduct. These actions raised significant security concerns, leading to the application of disqualifying conditions AG ¶ 15 and AG ¶ 16.

Despite some favorable findings under Guideline E (Personal Conduct), specifically AG ¶ 17, the judge determined that the severity and multiple nature of the applicant's misconduct, coupled with a lack of expressed remorse, warranted the denial of the security clearance.

Conditions referenced

Disqualifying

AG ¶ 16raisedCriminal Conduct
AG ¶ 15raisedSexual Behavior

Mitigating

AG ¶ 17appliedPersonal 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 issuedNov 20, 2015
Answer filed—
Hearing heldApr 6, 2017
Decision dateJun 23, 2017

Cite for

Serious Misconduct Involving Inappropriate Recording of Minors Under Guideline D and J
Due Process Considerations in the Context of Evidence Presentation
The Standard for Granting Security Clearance Related to 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 security concerns under Guidelines E, D, and J. The Applicant argued he was denied due process and that the Judge's findings were erroneous and 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 (split findings)

Decided ona hearing

Guidelines belowGuideline EGuideline DGuideline J

What the Board reviewed

Due-process / fairness, raised by the applicantRejected
Applicant claimed he was denied due process due to being blindsided by Department Counsel's exhibits.
Erroneous finding of fact, raised by the applicantRejected
Applicant argued that the Judge's findings were erroneous.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant contended that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge provided the Applicant with adequate opportunities to prepare and that the findings were supported by substantial evidence. The decision was not arbitrary or capricious.

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
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 E; Guideline D; Guideline J DIGEST: Applicant states that he was “blindsided” by Department Counsel’s exhibits. The Judge gave Applicant an opportunity to examine Department Counsel’s exhibits and offered to continue the hearing for 30 days in order to give him an opportunity to prepare. He also gave Applicant 30 days after the hearing to submit additional evidence. Applicant offered no objections to Department Counsel’s exhibits when they were offered into evidence. Adverse decision affirmed. CASENO: 15-02895.a1 DATE: 06/23/2017 DATE: June 23, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-02859

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 November 20, 2015, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline E (Personal Conduct), Guideline D (Sexual Behavior), and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On April 6, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Mark Harvey 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 he was denied due process, whether the Judge’s findings were erroneous, and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guideline E are not at issue in this appeal. Consistent with the following, we affirm. The Judge’s Findings of Fact While riding an escalator at a shopping mall, Applicant placed his cell phone underneath the skirt of a girl who appeared to be about 13 to 15 years old. Upon being stopped by the police, Applicant admitted that he had videotaped a girl with his cell phone. He gave the phone and password to the police, who discovered that the most recent video on the phone was taken from underneath the skirt of a female. The police found four other such videos. Applicant told the police that he had a problem and had been recording videos such as the one in question for two to three weeks. He described the impulse as an “uncontrollable urge.” Decision at 3. Applicant pled no contest to a charge of having secretly recorded another person’s body underneath the clothing for the purpose of gratifying the offender’s sexual desires. At the hearing, Applicant denied having made the admissions described above. He recalled giving his cell phone to the policeman but did not know if anything incriminating was found on it. In his post-hearing submission, Applicant denied having committed the offenses. Subsequently, a court changed Applicant’s plea to not guilty and dismissed the charge. Applicant has received therapy. Applicant received a certificate of appreciation for his having detected someone who was a security threat. He is dedicated to his work and takes pride in doing a good job. The Judge’s Analysis The incident described above was alleged under each of the three Guidelines referenced in the SOR. The Judge resolved the Guideline E allegation in Applicant’s favor insofar as it was duplicative of the of the Guidelines J and D concerns. In resolving these latter two Guidelines against Applicant, the Judge stated that Applicant had successfully completed probation. However, he described the offense as serious and recent. He also noted the multiple nature of Applicant’s misconduct, insofar as videos of several girls or women were found on his cell phone. He cited to Applicant’s admissions to the police and stated that Applicant had not expressed remorse. He also stated that it is not clear whether Applicant was frank with his therapist.

DISCUSSION

Applicant states that he was “blindsided” by Department Counsel’s exhibits, which he had not seen prior to the hearing. He states that he was not aware in advance that “such exhibit” would be offered into evidence and that he was not prepared for the hearing.1 We have examined the transcript and note that, prior to the hearing, Applicant advised the Judge that he had not received discovery from Department Counsel. The Judge gave Applicant an opportunity to examine Department Counsel’s exhibits and offered to continue the hearing for 30 days in order to give him an opportunity to prepare. He also gave Applicant 30 days after the hearing to submit additional evidence. Applicant did not request a 30-day continuance but did submit a post-hearing document, which was admitted without objection. Decision at 2; Tr. at 11. Moreover, he offered no objections to Department Counsel’s exhibits when they were offered into evidence. Tr. at 20. We find no reason to believe that Applicant was denied an opportunity to prepare his case for mitigation or that he was otherwise denied the due process afforded by the Directive. See, e.g., ISCR Case No. 15- 04472 at 3 (App. Bd. Feb. 9, 2017). Applicant states that the Judge’s material findings were based on assertions by persons who never came before the hearing. We construe this as an argument that GE 3 is not worthy of belief. As stated in the footnote above, GE 3 is a police report. Although it contains hearsay, this exhibit is admissible both as an official record under Directive ¶ E3.1.20 and as a public record under Federal Rule of Evidence 803(8). See, e.g., ISCR Case No. 06-06496 at 2-4 (App. Bd. Jun. 25, 2009). The contents of GE 3, when read in conjunction with all the other evidence in the record, support the Judge’s findings regarding Applicant’s security-significant conduct. The Judge’s material findings are supported by substantial evidence or constitute reasonable inferences from the evidence. See, e.g., ISCR Case No. 15-01285 at 3 (App. Bd. Dec. 22, 2016). The Judge examined the relevant evidence 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.”

FOOTNOTES

1 We take this to refer to Government Exhibit (GE) 3, a police report, which contained a description of the offense, Applicant’s admissions, etc. Department Counsel questioned Applicant extensively about the contents of this exhibit. Tr. at 33-49. 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board