A decided public DOHA case, shown for research, not advice or a prediction.

ISCR Case No. 00-0016

Appeal Board

Decided Oct 23, 2000 · Administrative Judge Kathryn Moen Braeman · Appeal

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The appeal involved a security clearance denial based on criminal conduct. The applicant argued that the Administrative Judge erred in not considering his conditional discharge as an acquittal, failed to recognize clear evidence of rehabilitation, and did not consider all evidence. The Board affirmed the Judge's decision, finding no harmful error in the reasoning or conclusions reached.

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Appearances

as been a showing the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. There is a rebuttable presumption that the Judge considered all the record evidence. Adverse decision affirmed.

Procedural History

APPEARANCES

FOR GOVERNMENT

Peregrine D. Russell-Hunter, Chief Department Counsel

FOR APPLICANT

Dan Cron, Esq.

Administrative Judge Kathryn M. Braeman issued a decision, dated June 9, 2000, in which she concluded it is not clearly

consistent with the national interest to grant or continue a security clea

Appeal Issues

nce for Applicant. Applicant appealed. For the

reasons that follow the Board affirms the Administrative Judge's decision.

The Board has jurisdiction on appeal under Executive Order 10865 and Department of Defense Directive 5220.6

(Directive), dated January 2, 1992, as amended.

Applicant's appeal presents the following issues: (1) whether or not the Administrative Judge erred by not viewing the

disposition of Applicant's criminal case as the equivalent of an acquittal for purposes of mitigation; (2) whether the

Judge erred by concluding that Applicant had failed to present clear evidence of successful rehabilitation; and (3)

whether the Administrative Judge considered all of the record evidence.

<CENTER>Procedural History</ CENTER>

The Defense Office of Hearings and Appeals issued a Statement of Reasons (SOR) to Applicant dated January 26, 2000.

The SOR was based on Guideline J (Criminal Conduct). Applicant responded to the SOR by Answer dated February 18,

2000 and requested a hearing.

A hearing was held on May 15, 2000. At the hearing, Department Counsel presented evidence that Applicant pled guilty

to a charge of Abuse of a Child, a third degree felony in the state of Applicant's residence. The evidence also established

that Applicant was granted a conditional discharge and was placed on supervised probation for one year. Applicant

introduced evidence of his superior job performance and his rehabilitation efforts which led to successful completion of

his probation.

The Administrative Judge issued a written decision, dated June 9, 2000, in which she concluded it is not clearly

consistent with the national interest to grant or continue a security clearance for Applicant. The case is before the Board

on Applicant's appeal from the Judge's adverse security clearance decision.

<CENTER>Appeal Issues</CENTER>

1. Whether the Judge erred by not viewing the disposition of Applicant's criminal case as the equivalent of an acquittal

for purposes of mitigation. The record evidence established that after Applicant's guilty plea to one count of Abuse of a

Child, the court did not enter an adjudication of guilt but instead entered a conditional discharge order and then placed

Applicant on probation for one year. The court also required Applicant to spend alternating weekends in jail for a

twelve-week period. Applicant was required to successfully complete parenting classes and other requirements of the

state social services agency. The criminal case against Applicant was finally dismissed on February 17, 2000.

In her decision the Administrative Judge correctly noted that acquittal is a basis for mitigation in cases brought under the

Criminal Conduct Guidelines.<A HREF="#N_1_"> (1)</A> She went on to state that she would not apply the mitigation guideline in this case

because it did not include a "conditional discharge" as a basis for mitigation.

On appeal, Applicant asserts that the Administrative Judge improperly failed to consider the disposition of the criminal

case as a factor in mitigation. The essence of his argument is that the state's granting a dismissal of the charges against

Applicant after providing him with a conditional discharge was, in effect, an acquittal of the Applicant since it involved a

"setting free from the charge of an offense by verdict, sentence, or other legal process." Applicant's argument lacks

merit.

The term "acquittal" as it is commonly understood in legal terms connotes an adjudication on the merits of a criminal

case that results in a finding of not guilty. Applicant's case is significantly different. H

Conclusion

e following: (a) that in March 1998

Applicant successfully completed a six-week parenting workshop; (b) in May 1998 Applicant received a Certificate of