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ISCR Case 19-00402.a1 — CASE

ISCR Case 19-00402.a1denied

Case Headnote

ISCR Case No. 19-00402.a1

Nov 6, 2019· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The applicant admitted to using marijuana while having access to classified information. Furthermore, the applicant falsified a security clearance application by failing to disclose this illegal drug use.

The judge found that these admissions and actions warranted denial, citing disqualifying conditions AG ¶ 25 and AG ¶ 16. The judge's findings were supported by substantial evidence and reasonable inferences drawn from the facts presented.

The appeal board affirmed the adverse decision, concluding there was no error in the judge's analysis and that the conclusions were well-supported. Consequently, the applicant's security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 25raisedDrug Involvement
AG ¶ 16raisedPersonal Conduct

Key Rule Quoted

“Having admitted the SOR allegations, Applicant was responsible for presenting evidence to mitigate the resulting security concerns, and he had the ultimate burden of persuasion for obtaining a security clearance.”

Procedural Posture

SOR issuedMar 6, 2019
Answer filed—
Hearing heldAug 8, 2019Decision issued by Administrative Judge Robert Robinson Gales.
Decision dateNov 6, 2019Appeal affirmed.

Cite For

Affirmation of Adverse Decision Based on Drug Involvement and Personal Conduct
Burden of Persuasion Lies with the Applicant to Mitigate Security Concerns
Limitations on New Evidence Submission 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 involved a denial of a security clearance based on allegations under Guideline H and Guideline E. The applicant argued that the Judge erred in characterizing the evidence and in his whole-person analysis. The Board affirmed the Judge's decision, finding no harmful error in the Judge's conclusions.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRobert Robinson Gales — denied the clearance

Decided onthe written record

Guidelines belowGuideline HGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contends the Judge erred in his characterization of the evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argues that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's findings and conclusions were based on substantial evidence and that the Judge did not act arbitrarily or capriciously in his decision-making process.

Standard of review applied

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

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 H; Guideline E DIGEST: Applicant asserts that the Judge should have engaged in an more extensive whole- person inquiry. The Directive, however, does not authorize a Judge to act as an investigator for either party. Having admitted the SOR allegations, Applicant was responsible for presenting evidence to mitigate the resulting security concerns, and he had the ultimate burden of persuasion for obtaining a security clearance. Adverse decision affirmed. CASENO: 19-00402.a1 DATE: 11/06/2019 DATE: November 06, 2019 ) In Re: ) ) ---------- ) ISCR Case No. 19-00402

) ) Applicant for Security Clearance ) )

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 6, 2019, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline H (Drug Involvement and Substance Misuse) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On August 8, 2019, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Robert Robinson Gales denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge erred in his characterization of the evidence and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. Under Guideline H, the SOR alleged that Applicant used marijuana with varying frequency from about 1979 to 1981 while granted access to classified information and that he used it in about December 2017 while granted access to classified information. Under Guideline E, the SOR alleged that Applicant falsified a security clearance application in 2010 for failing to disclose that he ever illegally used a controlled substance while possessing a security clearance, and the SOR also cross- alleged the Guideline H allegation that Applicant used marijuana in about December 2017 while granted access to classified information. In responding to the SOR, Applicant admitted each of the SOR allegations. The Judge found against Applicant on all of the allegations. Applicant’s appeal brief contains documents and assertions that were not previously submitted to the Judge for consideration. The Appeal Board is prohibited from considering new evidence on appeal. Directive ¶ E3.1.29. Applicant contends the Judge erred in his characterization of the evidence. In the Decision, the Judge concluded: Applicant admittedly was a recreational substance abuser between June 1979 and June 1981. Although he did not use marijuana for nearly four decades thereafter, in December 2017, he once again succumbed to smoking marijuana as part of what he described as a “ceremonial partaking.” [Decision at 6.] Applicant argues that the Judge implied a pattern of behavior that did not exist and his use of word “succumbed” incorrectly reflects that Applicant had some underlying urge to use marijuana. From our review of the record, we conclude that the Judge’s material findings and conclusions of a security concern are based on substantial evidence or constitute reasonable inferences that could be drawn from the evidence. See, e.g., ISCR Case No. 12-03420 at 3 (App. Bd. Jul. 25, 2014). Applicant also contends the Judge erred in his mitigation and whole-person analysis. For example, he points out that he ceased using marijuana for decades and only used it more recently at a solemn moment, a funeral. These arguments amount to a disagreement with the Judge’s weighing of the evidence and are not sufficient to demonstrate the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15-08684 at 2 (App. Bd. Nov. 22, 2017). Applicant asserts that the Judge should have engaged in an more extensive whole- person inquiry. The Directive, however, 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). Having admitted the SOR allegations, Applicant was responsible for presenting evidence to mitigate the resulting security concerns, and he had the ultimate burden of persuasion for obtaining a security clearance. Directive ¶ E3.1.15. We also note that Applicant has not challenged on appeal the Judge unfavorable falsification finding, which is an independent basis for the Judge’s adverse decision. The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The decision is sustainable on the record.

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