A decided public DOHA case, shown for research, not advice or a prediction.
ISCR Case No. 15-06434.a1
Appeal BoardDecided Aug 2, 2017 · Administrative Judge Michael Y. Ra'anan · Appeal
Case headnote
Summary
The applicant, representing himself, sought a security clearance under Guideline J (Criminal Conduct) but was denied due to admitted allegations of criminal conduct. The appeal board affirmed the denial, emphasizing the applicant's burden to present evidence in mitigation and finding no harmful error in the judge's decision-making process.
Why the applicant was denied
- The applicant admitted the sole allegation in the Statement of Reasons (SOR).
- The applicant failed to present evidence in mitigation despite the burden being on him.
- The judge's decision was found to be adequately supported by the evidence presented.
Conditions referenced
Disqualifying
- J1 Criminal conductraised
Key rule quoted
“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”
Procedural posture
- SOR issued
- 2016-03-28
- Answer filed
- Hearing held
- 2017-05-30 Decision issued by Administrative Judge Carol G. Ricciardello.
- Decision date
- 2017-08-02 Appeal 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
The appeal was filed by the applicant after the Administrative Judge denied his request for a security clearance based on criminal conduct under Guideline J. 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.
Descriptive structured reading of this decided, public Appeal Board decision: what the case says, not a prediction or advice.
Full decision
Open original PDFThe complete official text, footnotes and signatures included, is in the original PDF.
Decision text, by section
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
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