CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 18-02398.a1 — CASE

ISCR Case 18-02398.a1denied

Case Headnote

ISCR Case No. 18-02398.a1

May 11, 2020· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance application was denied under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The applicant, representing himself, was found to have engaged in past illegal drug use, including marijuana and MDMA, and admitted to selling ecstasy at a party.

A primary reason for the denial was the applicant's failure to disclose this significant drug involvement during the security clearance process. The appeal board affirmed the denial, finding no harmful error in the judge's original decision.

The board emphasized the critical importance of truthful and complete disclosure in all security clearance evaluations. Claims of ineffective assistance of counsel were rejected, and the denial was upheld based on the applicant's conduct and lack of candor.

Conditions Referenced

Disqualifying

HraisedDrug Involvement
EraisedPersonal Conduct

Key Rule Quoted

“Failure or refusal to provide truthful answers during the security clearance process will normally result in an unfavorable clearance action.”

Procedural Posture

SOR issuedNov 9, 2018
Answer filed—
Hearing heldFeb 5, 2020
Decision dateMay 11, 2020

Cite For

Affirmation of Denial Based on Drug Involvement Under Guideline H
Importance of Truthful Disclosure in Security Clearance Evaluations
Ineffective Assistance of Counsel Not Applicable in DOHA Proceedings

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 was filed by the applicant after the denial of his security clearance based on drug involvement and personal conduct. The applicant argued ineffective assistance of counsel and presented new evidence. The Board affirmed the decision, finding no harmful error in the Administrative Judge's ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCaroline E. Heintzelman — denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline E

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant argued that his attorney's ineffective assistance impaired his case presentation.

Why the Board ruled this way

The Board found that the Administrative Judge provided due process and articulated a satisfactory explanation for the decision, affirming the denial of the security clearance.

Standard of review applied

No de-novo re-decisionNo new evidence on appealProcedural compliance

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: Guideline H; Guideline E DIGEST: The ineffective assistance of counsel doctrine is not applicable in a DOHA proceeding. An examination of the record shows that Applicant received from DOHA the due process afforded by the Directive. Adverse decision is affirmed. CASE NO: 18-02398.a1 DATE: 05/11/2020 DATE: May 11, 2020 ) In Re: ) ) --------------------------- ) ISCR Case No. 18-02398

) ) 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 November 9, 2018, 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 hearing. On February 5, 2020, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Caroline E. Heintzelman denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The SOR alleged, and the Judge found, that Applicant had used marijuana once each in 2011 and 2012 and again ingested marijuana in early 2016; that he purchased and used MDMA (ecstasy) in 2017, and sold ecstasy at a party in 2017; and that Applicant had deliberately failed to disclose his security significant conduct on his security clearance application and during a clearance interview. Applicant was represented at the hearing by an attorney. Applicant’s Appeal Brief lists several things that his attorney did, or that he failed to do, that Applicant believes impaired a full and effective presentation of his case for mitigation. For example, he argues that an affidavit submitted on his behalf contained errors. Much of Applicant’s brief consists of new evidence, which we generally cannot consider, although we will consider new evidence insofar as it bears upon jurisdiction or due process. Directive ¶ E3.1.29. See ISCR Case No. 18-01764 at 1-2 (App. Bd. Jun. 4, 2019). Having said that, the ineffective assistance of counsel doctrine is not applicable in a DOHA proceeding. See, e.g., ISCR Case No. 15-07941 at 2-3 (App. Bd. Nov. 29, 2018).1 An examination of the record shows that Applicant received from DOHA the due process afforded by the Directive. See Directive ¶ E3.1.8 et seq. Applicant’s brief cites to his good duty performance. He also contends that he omitted his drug involvement due to fear, something that he had testified about at the hearing. However, Applicant’s argument is not enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 18-02581 at 4 (App. Bd. Jan. 14, 2020). Applicant’s brief does not raise an issue of harmful error by the Judge. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. Failure or refusal to provide truthful answers during the security clearance process “will normally result in an unfavorable clearance action[.]” Directive, Enclosure 2 ¶ 15(b). See also ISCR Case No. 15-08255 at 3 (App. Bd. Aug. 22, 2017). 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 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

FOOTNOTES

1 Applicant argues that he did not know that he could have provided additional evidence until December 2, suggesting that his lawyer withheld that from him. It was discussed at his hearing. Tr. pp 80-81.