CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 19-01204.a1 — CASE

ISCR Case 19-01204.a1denied

Case Headnote

ISCR Case No. 19-01204.a1

Dec 20, 2019· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, represented by counsel, was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). Disqualifying conditions included the applicant's admission to using and purchasing illegal drugs (H1) and falsifying information on his security clearance application (E2).

While mitigating conditions H2 and E3 were applied, they were insufficient to overcome the security concerns. The applicant argued for mitigation based on personal growth, but the appeal board affirmed the denial.

The board found no harmful error in the judge's decision, emphasizing the importance of national security and the unchallenged findings of falsification. The security clearance was ultimately DENIED.

Conditions Referenced

Disqualifying

H1raisedDrug Involvement
E2raisedFalsification of Information

Mitigating

H2rejectedCessation of Drug UseApplicant's arguments regarding personal growth and cessation of drug use were insufficient to overturn the judge's findings.
E3rejectedEvidence of RehabilitationApplicant did not present new evidence to support claims of rehabilitation.

Key Rule Quoted

“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)

Procedural Posture

SOR issuedJun 24, 2019
Answer filed—
Hearing heldSep 26, 2019Decision made on written record.
Decision dateDec 20, 2019Appeal decision affirmed.

Cite For

Affirmation of Denial Based on Drug Involvement Under Guideline H
Importance of Unchallenged Falsification Findings in Clearance Decisions
Standard for Granting Clearance Related to National Security Interests

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 drug involvement and personal conduct. The applicant agreed with the Judge's findings but argued that the Judge erred in the mitigation and whole-person analysis. The Board affirmed the decision, finding no harmful error in the Judge's ruling.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRobert Robinson Gales — denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline HGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge erred in his mitigation and whole-person analysis.

Why the Board ruled this way

The Board found that the Judge did not commit any harmful error and that the decision was sustainable on the record. The Judge articulated a satisfactory explanation for the decision, which was consistent with national security interests.

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 states that he agrees with the Judge’s findings of fact. However, he contends that the Judge erred in his mitigation and whole-person analysis. He asserts that he has stopped all use of illegal drugs; that he has matured as an individual, and that he has severed his relationships with drug users. These arguments amount to a challenge of the Judge’s weighing of the evidence and are insufficient to establish that he weighed it in a manner that was arbitrary, capricious, or contrary to law. Of particular note, Applicant has not directly challenged the Judge’s adverse falsification findings. Adverse decision affirmed. CASE NO: 19-01204.a1 DATE: 12/20/2019 DATE: December 20, 2019 ) In Re: ) ) ------------------ ) ISCR Case No. 19-01204

) ) Applicant for Security Clearance ) )

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Austin J. Lewis, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On June 24, 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 September 26, 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 issue on appeal: 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 on various occasions from about 2011 to early 2017, including while granted access to classified information, that he purchased marijuana on various occasions from about 2012 to mid-2015; that he used cocaine on at least two occasions from about 2015 to early 2017, including while granted access to classified information; and that he used a prescription medication that was not prescribed to him on at least one occasion in about late 2016. Under Guideline E, the SOR alleged that Applicant falsified his responses to three illegal drug activity questions in a security clearance application in 2016. In responding to the SOR, Applicant admitted each allegation. The Judge found in favor of Applicant on one falsification allegation and against him on the remaining allegations. In the appeal brief, Applicant states that he agrees with the Judge’s findings of fact. However, he contends that the Judge erred in his mitigation and whole-person analysis. In his arguments, he asserts, for example, that he has stopped all use of illegal drugs; that he has matured as an individual, and that he has severed his relationships with drug users. These arguments amount to a challenge of the Judge’s weighing of the evidence and are insufficient to establish that he weighed it 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). Of particular note, Applicant has not directly challenged the Judge’s adverse falsification findings. Applicant also contends that, if he was provided a renewed opportunity, he would present a certified pledge to refrain from illegal drugs, character references, and other evidence. The Appeal Board is prohibited from considering new evidence on appeal. Directive ¶ E3.1.29. This prohibition extends to statements in an appeal brief about evidence that Applicant could, but failed to, present. Similarly, the Board does not have authority to remand a case for the purpose of taking in new evidence. See, e.g., ISCR Case No. 12-10934 at 2 (App. Bd. Mar. 21, 2016). Applicant further contends that denying a clearance to someone who eventually divulges the truth establishes a poor precedent because it would encourage others to keep their misconduct secret to maintain their security clearances or employment. Given the unchallenged falsification finding against Applicant, this argument lacks merit. Furthermore, each case is decided on its own merits as opposed to how others may perceive it. Directive, Encl. 2, App A¶ 2(b). Moreover, how others may perceive a case is not listed as a relevant factor in the adjudicative guidelines. Applicant failed to establish that the Judge committed any harmful error. The Judge examined the relevant data 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