DATE: May 8, 2003
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SSN: -----------
Applicant for Security Clearance
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Peregrine D. Russell-Hunter, Esq., Chief Department Counsel
FOR APPLICANT
Lynn H. Ball, Esq.
Applicant has appealed the February 24, 2003 decision of Administrative Judge Darlene Lokey Anderson, in which the Judge concluded it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant.
This 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 the Administrative Judge erred by concluding Applicant's 1984 conviction falls under 10 U.S.C. §986; and (2) whether the Administrative Judge erred by not concluding Applicant's criminal conduct was mitigated. For the reasons that follow, the Board affirms the Administrative Judge's adverse decision, and does not recommend Applicant's case be considered further for a waiver under 10 U.S.C. §986
The Defense Office of Hearings and Appeals issued to Applicant a Statement of Reasons (SOR) dated July 29, 2002. The SOR was based on Guideline J (Criminal Conduct). A hearing was held on January 16, 2003.
The Administrative Judge issued a written decision, dated February 24, 2003, 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 decision.
On appeal, the Board does not review a case de novo. Rather, the Board addresses the material issues raised by the parties to determine whether there is factual or legal error. There is no presumption of error below, and the appealing party must raise claims of error with specificity and identify how the Administrative Judge committed factual or legal error. See Directive, Additional Procedural Guidance, Item E3.1.32. See also ISCR Case No. 00-0050 (July 23, 2001) at pp. 2-3 (discussing reasons why party must raise claims of error with specificity).
When an Administrative Judge's factual findings are challenged, the Board must determine whether "[t]he Administrative Judge's findings of fact 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. In making this review, the Appeal Board shall give deference to the credibility determinations of the Administrative Judge." Directive, Additional Procedural Guidance, Item E3.1.32.1. The Board must consider not only whether there is record evidence supporting a Judge's findings, but also whether there is evidence that fairly detracts from the weight of the evidence supporting those findings. See, e.g., ISCR Case No. 99-0205 (October 19, 2000) at p. 2.
When a challenge to an Administrative Judge's rulings or conclusions raises a question of law, the Board's scope of review is plenary. See DISCR Case No. 87-2107 (September 29, 1992) at pp. 4-5 (citing federal cases).
1. Whether the Administrative Judge erred by concluding Applicant's 1984 conviction falls under 10 U.S.C. §986. The Administrative Judge found: (a) in 1984 Applicant was found guilty of seven counts of bribery, violations of 18 U.S.C. §201(c); (b) Applicant was sentenced to four years and eleven months in jail; (c) the sentence of imprisonment was suspended and Applicant was placed on five years probation, fined $3,000, and ordered to pay $2,685 in restitution; and (d) Applicant paid the fine, made restitution, and completed probation. The Judge concluded that Applicant's bribery conviction falls under 10 U.S.C. §986 and that application of that statute precluded a favorable security clearance decision. (1)
On appeal, Applicant contends the Administrative Judge erred by concluding Applicant's 1984 conviction falls under 10 U.S.C. §986. In support of that contention, Applicant argues "since he completed probation successfully, his probation was not violated and he only did thirty days actual custody, then for purposes of Guideline J, the actual sentence should be the thirty days that he served." For the reasons that follow, the Board finds Applicant's argument unpersuasive.
The Deputy Secretary of Defense issued a June 7, 2001 memorandum (with attachments) (2)
providing guidance on how the Department of Defense would implement the provisions of 10 U.S.C. §986. To carry out the provisions of the June 7, 2001 memorandum, the Director, DOHA issued an operating instruction (dated July 10, 2001) which indicates the following:
"Administrative Judges are responsible for initial resolution as to whether or not 10 U.S.C. 986 applies to the facts of the case." (Operating Instruction, paragraph 2.e.)
"In the event of an appeal raising an issue as to the applicability of 10 U.S.C. 986, the Appeal Board is responsible for final resolution of the issue." (Operating Instruction, paragraph 2.f.)
The Board has held that, under the provisions of the June 7, 2001 memorandum, an applicant's conviction falls within the scope of 10 U.S.C. §986 when the applicant was sentenced to a term of imprisonment for a term exceeding one year regardless of whether the sentence of imprisonment was suspended and regardless of the amount of time in jail the applicant actually served. See ISCR Case No. 01-13566 (April 15, 2003) at p. 5; ISCR Case No. 01-06337 (September 24, 2002) at p. 3; ISCR Case No. 01-00407 (September 18, 2002) at p. 3. Furthermore, the Board has held that an applicant's completion of probation does not take his or her case outside the scope of 10 U.S.C. §986. See ISCR Case No. 01-13566 (April 15, 2003) at pp. 5-6. Accordingly, Applicant's appeal arguments fail to demonstrate the Judge erred by concluding his 1984 conviction falls under 10 U.S.C. §986 and precludes a favorable security clearance decision in his case.
2. Whether the Administrative Judge erred by not concluding Applicant's criminal conduct was mitigated. Applicant also contends the Administrative Judge should have concluded his past criminal conduct was mitigated under Criminal Conduct Mitigating Conditions 1 (3)
and 2. (4)
This contention fails to demonstrate harmful error by the Judge.
According to the first attachment to the June 7, 2001 memorandum, "all cases potentially covered by [10 U.S.C. §986] shall be fully investigated and adjudicated in accordance with current Executive Order and DoD Directive and Regulatory guidance, including applicable due process procedures." (5)
Therefore, adjudication of a case under 10 U.S.C. §986 does not relieve an Administrative Judge from applying pertinent provisions of the Directive in a manner that is consistent with requirements of 10 U.S.C. §986 as implemented by the June 7, 2001 memorandum and its attachments.
The Board understands the first attachment to the June 7, 2001 memorandum as requiring an Administrative Judge to adjudicate cases covered by 10 U.S.C. §986 as the Judge would have done prior to enactment of that statute (6)
with additional steps being added to the adjudication. Neither 10 U.S.C. §986 nor the June 7, 2001 memorandum (or its attachments) relieves a Judge from the requirement to issue a written decision "setting forth pertinent findings of fact, policies, and conclusions as to the allegations in the SOR . . . ." Directive, Additional Procedural Guidance, Item E3.1.25. See also Directive, Section 6.3 (indicating that each security clearance decision must be based upon consideration of all relevant and material information and pertinent provisions of the Adjudicative Guidelines). In fulfilling that requirement, the Judge must apply pertinent provisions of the Adjudicative Guidelines as revised by the attachments to the June 7, 2001 memorandum. (7)
Furthermore, the Judge must decide whether or not to make a recommendation for a waiver under 10 U.S.C. §986, pursuant to the provisions of the Operating Instruction.
Applicant's appeal arguments raise the question of whether the Administrative Judge should have concluded his past criminal conduct was mitigated under Criminal Conduct Mitigating Conditions 1 and 2. Regardless of the Judge's conclusion about the applicability of 10 U.S.C. §986, the Judge had the obligation to apply pertinent Criminal Conduct mitigating conditions. Given the record evidence in this case, the Judge erred by not explaining why she concluded no Criminal Conduct mitigating conditions were applicable to Applicant's case. However, because Applicant's 1984 conviction falls under 10 U.S.C. §986, the Judge could not have made a favorable security clearance decision based on application of Criminal Conduct Mitigating Conditions 1 and 2. (8)
Accordingly, no useful purpose would be served by granting Applicant's request that the Board "remand this case back to the Administrative Judge for her to make findings of fact that there are mitigating circumstances which authorize the applicant to have a security clearance."
Although Applicant is not entitled to the relief he requests, the Board will construe his arguments concerning mitigation as raising the issue of whether the Board should recommend his case be considered further for a waiver under 10 U.S.C. §986. Under the Operating Instruction,
"If an Administrative Judge issues a decision denying or revoking a clearance solely as a result of 10 U.S.C. 986, the Administrative Judge shall include without explanation either the statement 'I recommend further consideration of this case for a waiver of 10 U.S.C. 986' or 'I do not recommend further consideration of this case for a waiver of 10 U.S.C. 986.'" (Operating Instruction, paragraph 3.e.)
"If the Appeal Board issues a decision denying or revoking a clearance solely as a result of 10 U.S.C. 986, the Appeal Board shall include without explanation either the statement 'The Appeal Board recommends consideration of this case for a waiver of 10 U.S.C. 986' or 'The Appeal Board does not recommend consideration of this case for a waiver of 10 U.S.C. 986.'" (Operating Instruction, paragraph 3.f.)
The Operating Instruction does not authorize the Board to review an Administrative Judge's recommendation whether or not a waiver should be considered. Furthermore, under the Operating Instruction, the Board is not authorized to give reasons or an explanation for its decision to recommend or not recommend that a waiver be considered, but only state without explanation either: (1) "The Appeal Board recommends consideration of this case for a waiver of 10 U.S.C. 986" or (2) "The Appeal Board does not recommend consideration of this case for a waiver of 10 U.S.C. 986." Since the Board is asked to make a recommendation in its own capacity, the Board is not bound by the recommendation made by the Judge below and must review the record evidence as a whole in order to fulfill its obligation to make a meaningful decision whether to recommend or not that a waiver should be considered.
Recognizing the limits of its authority under the Operating Instruction, the Board has reviewed the record evidence as a whole and states the following: The Appeal Board does not recommend consideration of this case for a waiver of 10 U.S.C. §986.
The Board affirms the Administrative Judge's conclusion that 10 U.S.C. §986 applies to Applicant's 1984 conviction and precluded her from making a favorable security clearance decision in Applicant's case. As noted above, the Appeal Board does not recommend further consideration of this case for a waiver under 10 U.S.C. §986.
Signed: Emilio Jaksetic
Emilio Jaksetic
Administrative Judge
Chairman, Appeal Board
Signed: Michael Y. Ra'anan
Michael Y. Ra'anan
Administrative Judge
Member, Appeal Board
Signed: Jeffrey D. Billett
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
1. Under 10 U.S.C. §986, the Department of Defense may not grant or renew a security clearance for a defense contractor official or employee that falls under any of four statutory categories [10 U.S.C. §986(c)(1) through (c)(4)]. 10 U.S.C. §986(c)(1) states "The person has been convicted in any court of the United States of a crime and sentenced to imprisonment for a term exceeding one year."
2. The first attachment is entitled "Criteria for Implementing the Provisions of 10 U.S.C. 986 in All DoD Determinations for Access to Classified Information." The second, third and fourth attachments are identified by the June 7, 2001 memorandum as "revised copies of the adjudication guidelines" (Guidelines H, I, and J).
3. "The criminal behavior was not recent."
4. "The crime was an isolated incident."
5. In these proceedings, the pertinent legal authorities are Executive Order 10865 and the Directive.
6. The first attachment to the June 7, 2001 memorandum states "If the result of the current process, without consideration of the statute, would be to grant or renew the security clearance of someone covered by provisions [10 U.S.C. §986(c)(1) and 10 U.S.C. §986(c)(4)], the authority responsible for making that decision may recommend to the Secretary of Defense or the Secretary of the Military Department concerned, that the case merits a waiver." Paragraph 3.e of the Operating Instruction states "If an Administrative Judge issues a decision denying or revoking a security clearance solely as a result of 10 U.S.C. 986, the Administrative Judge shall include without explanation either the statement 'I recommend further consideration of this case for a waiver of 10 U.S.C. 986' or 'I do not recommend further consideration of this case for a waiver of 10 U.S.C. 986.'"
7. In this case, the Administrative Judge's finding that Applicant's 1984 conviction falls under 10 U.S.C. §986 required the Judge to apply the following Criminal Conduct disqualifying condition: "Conviction in a Federal or State court, including a court-martial of a crime and sentenced to imprisonment for a term exceeding one year." By the terms of the third attachment to the June 7, 2001 memorandum, that Criminal Conduct disqualifying condition "may not be mitigated unless, where meritorious circumstances exist, the Secretary of Defense or the Secretary of the Military Department concerned has granted a waiver."
8. See footnote 7 of this decision.