CASEClearance Adjudication Search EngineCASE

Loading case…

ISCR Case 15-06229.a1 — CASE

ISCR Case 15-06229.a1denied

Case Headnote

ISCR Case No. 15-06229.a1

Feb 15, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A 54-year-old applicant was denied eligibility for a Common Access Card (CAC) due to a criminal history involving three felony counts of uttering forgery. The applicant had been sentenced to five years of probation for these offenses.

The denial was based on the applicant's failure to provide evidence of completing probation or otherwise mitigating the concerns raised by her criminal conduct. The appeal board found that the judge's initial findings of fact were supported by substantial evidence.

Ultimately, the appeal board upheld the denial, concluding that granting CAC eligibility would pose an unacceptable risk, citing insufficient evidence of rehabilitation or mitigating circumstances. The denial was based on the cited guidelines and disqualifying condition AG ¶ 16(a).

Conditions Referenced

Disqualifying

AG ¶ 16(a)raisedCriminal Conduct

Key Rule Quoted

“The applicable Supplemental Adjudicative Standards do not require that an applicant be convicted of a crime to determine that issuance of a CAC to him or her presents an 'unacceptable risk.'”
— DoD Instruction 5200.46 (Sep. 9, 2014)

Procedural Posture

SOR issuedNov 17, 2015
Answer filed—
Hearing heldOct 28, 2016
Decision dateFeb 15, 2017

Cite For

Affirmation of Denial Based on Criminal Conduct Under AG ¶ 16(a)
Insufficient Evidence of Rehabilitation or Mitigating Circumstances
Unacceptable Risk Determination Without a Conviction Required

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 eligibility for a Common Access Card (CAC) based on criminal conduct. The applicant argued that the Judge erred in finding her convicted of felony charges. The Board affirmed the decision, finding the Judge's conclusions were supported by substantial evidence and that any potential error was harmless.

Appealed bythe applicant

Applicant representationAttorney

Judge belowCarol G. Ricciardello — denied the clearance

Decided onthe written record

Guidelines belowGuideline CAC

What the Board reviewed

Erroneous finding of fact — raised by the applicantRejected
Applicant contended that the Judge erred in concluding that she was convicted of three felony counts of uttering forgery and was sentenced to five years of probation.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge's findings of fact were based on substantial evidence and that even if there was an error in the conviction finding, it would not have been harmful as the outcome would likely remain the same.

Standard of review applied

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

Appeal Board panel

Michael Y. 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: CAC Criminal or Dishonest Conduct DIGEST: We find the Judge’s findings of fact about the charges against Applicant and their disposition were based on substantial evidence. Furthermore, even if the Judge’s finding of a conviction was in error, we conclude it would not have been harmful, since a finding of non- adjudication with five years probation would likely have produced an adverse decision. Adverse decision affirmed. CASE NO: 15-06229.a1 DATE: 02/15/2017 DATE: February 15, 2017 In Re: ------------

Applicant for CAC Eligibility ) ) ) ) ) ) ) ) CAC Case No. 15-06229

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Rodney A. Ray, Esq. The Department of Defense (DoD) declined to grant Applicant eligibility for Common Access Card (CAC) credentialing. On November 17, 2015, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–criminal or dishonest conduct or financial irresponsibility concerns raised under the adjudicative standards in the appendices of DoD Instruction 5200.46 (Sep. 9, 2014) (Instruction). Applicant requested a decision on the written record. On October 28, 2016, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Carol G. Ricciardello denied Applicant’s request for CAC eligibility. Applicant appealed pursuant to Instruction, Enclosure 4 ¶ 6. Applicant raised the following issue on appeal: whether the Judge erred in her findings of fact. Consistent with the following, we affirm. The Judge’s Findings of Fact In completing a Declaration of Federal Employment application in 2014, Applicant, who is 54 years old, answered “yes” to the question that asked if in the last seven years she had been convicted, been imprisoned, been on probation, or been on parole. In response to a follow-up question, she listed the violation as “uttering forgery” and provided the date and place of occurrence, but provided no other details. An FBI criminal report noted that Applicant was arrested in 2008 and charged with “making fraudulent statements/misrepresentations.” The charge was later amended to three counts of felony “uttering forgery.” In 2011, she was convicted of three felony counts of “uttering forgery” and sentenced to five years of probation. In her answer to the SOR, Applicant stated, “I deny conviction,” but did not provide any additional information. The Judge’s Analysis Applicant failed to provide any information as to the facts and circumstances surrounding her arrest and conviction for “uttering forgery” or whether she completed her probation. Despite evidence from the FBI report, she denied the conviction in her SOR answer. Insufficient evidence was presented to conclude the offense occurred under unusual circumstances or is unlikely to recur. Applicant failed to mitigate the concerns raised by her past criminal conduct.

DISCUSSION

Applicant contends that the Judge erred in concluding that she was convicted of three felony counts of uttering forgery and was sentenced to five years of probation. In her appeal, she provided court documents that were not previously submitted to the Judge. Those documents constitute new evidence that the Appeal Board can neither receive nor consider. See Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive) ¶ E.3.1.29. When a Judge’s findings of fact are challenged, we examine the record to see if they are supported by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” Directive ¶ E3.1.32.1. In this case, the FBI criminal report reflected that Applicant was “CONVICTED (CONVICT 2011 . . . GUILTY)” of three felony counts of uttering forgery and was sentenced to “SUPERVISION: 5Y PROBATION NON-ADJ - CTS 2 & 3 RETIRED.” As the Judge noted, no information was provided to show that Applicant completed her probation. In also merits noting that Applicant was provided the opportunity to respond to Department Counsel’s File of Relevant Material and provide information explaining how the charges were processed, but she did not submit a response. Without knowing that Applicant successfully completed her probation and that a criminal court later granted her a petition for relief based on her successful completion of the probation, insufficient evidence was presented to conclude the charges resulted in a “non-adjudication” of guilt. We find the Judge’s findings of fact about the charges against Applicant and their disposition were based on substantial evidence. Furthermore, even if the Judge’s finding of a conviction was in error, we conclude it would not have been harmful, since a finding of non-adjudication with five years probation would likely have produced an adverse decision. The applicable Supplemental Adjudicative Standards do not require that an applicant be convicted of a crime to determine that issuance of a CAC to him or her presents an “unacceptable risk.” See, Instruction, Enclosure 4 ¶¶ 2.b(1), 2.b(2), and 2.b(3). In this case, the FBI criminal report reflected that Applicant was charged with three felony counts of uttering forgery, that she was “GUILTY” of those charges, and that she was sentenced. Government Exhibit 5. Although we do not know the underlying facts that resulted in those charges, the record evidence is sufficient for the Judge to conclude that Applicant presents an unacceptable risk (e.g., a threat to the safety of U.S. Government physical assets, information systems, and records) to deny her CAC eligibility. In light of the record as a whole, we conclude that the Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on this record.

ORDER

The Decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. 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