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ISCR Case 15-06434.a1 — CASE

ISCR Case 15-06434.a1denied

Case Headnote

ISCR Case No. 15-06434.a1

Aug 2, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied under Guideline J (Criminal Conduct) due to admitted allegations of criminal conduct. The Statement of Reasons (SOR) contained a single allegation, which the applicant conceded.

The denial was upheld because the applicant failed to present any evidence in mitigation, despite the burden being on him to do so. The judge's decision was found to be adequately supported by the evidence presented, and the appeal board found no harmful error in the judge's process.

Ultimately, the appeal board affirmed the denial of the applicant's security clearance.

Conditions Referenced

Disqualifying

J1raisedCriminal 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 28, 2016
Answer filed—
Hearing heldMay 30, 2017Decision issued by Administrative Judge Carol G. Ricciardello.
Decision dateAug 2, 2017Appeal decision affirmed.

Cite For

Burden of Proof on Applicant to Present Evidence in Mitigation
Affirmation of Denial Based on Admitted Allegations Under Guideline J
Limitations on New Evidence During Appeal Process

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 security concerns under Guideline J (Criminal Conduct). The applicant argued that the Judge's decision was inefficient and that the Judge should have investigated his probation status. The Board affirmed the decision, finding no harmful error in the Judge's ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCarol G. Ricciardello — denied the clearance

Decided onthe written record

Guidelines belowGuideline J

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant contends that the Judge’s decision was not completed efficiently and argues the Judge should have followed through to determine he was released from probation.

Why the Board ruled this way

The Board found no harmful error in the Judge's handling of the case or in her decision. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision, which was sustainable on the record.

Standard of review applied

No de-novo re-decisionNo new evidence on appealSubstantial-evidence reviewArbitrary-and-capricious review

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 DIGEST: Applicant contends that the Judge’s decision “was not completed efficiently” and argues the Judge should have “followed through” to determine he was released from probation. Having admitted the sole SOR allegation, the burden was on Applicant to present such evidence in mitigation. The Directive does not authorize a Judge to act as an investigator for either party. Adverse decision affirmed. CASENO: 15-06434.a1 DATE: 08/02/2017 DATE: August 2, 2017 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-06434

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 March 28, 2016, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On May 30, 2017, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Carol G. Ricciardello denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant’s appeal brief contains new evidence in the form of a narrative statement and court documents. The Appeal Board cannot consider new evidence on appeal. Directive ¶ E3.1.29. Applicant contends that the Judge’s decision “was not completed efficiently” and argues the Judge should have “followed through” to determine he was released from probation. Appeal Brief at 1. Having admitted the sole SOR allegation, the burden was on Applicant to present such evidence in mitigation. Directive ¶ E3.1.15. The Directive does not authorize a Judge to act as an investigator for either party. See, e.g., ISCR Case No. 11-06659 at 5 (App. Bd. Oct 22. 2012). Applicant has not identified any harmful error in the Judge’s handling of the case or in her decision. 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, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility 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