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ISCR Case 19-01504 — CASE

Case record

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

Decision Date5/18/2022
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionsSee the hearing decision (Case 19-01504) →See the appeal decision (Case 19-01504) →See the hearing decision (Case 19-01504) →See the appeal decision (Case 19-01504.a1) →See the hearing decision (Case 19-01504) →
Participants
Applicant Representation: Pro Se
Judge: Moira D. Modzelewski, James E. Moody, James F. Duffy
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline EPersonal Conduct · For Applicant
- Guideline HDrug Involvement & Substance Misuse · Against Applicant
- Guideline JCriminal Conduct · Against Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
Finding similar decisions…

ISCR Case 19-01504denied

Case Headnote

ISCR Case No. 19-01504

May 18, 2022· Hon. Moira D. Modzelewski· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance due to concerns under Guideline E (Personal Conduct), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct). The denial was based on the applicant's history of drug involvement and his falsification of information on two separate security clearance applications.

Specifically, the applicant provided false responses regarding his drug use and failed to disclose multiple drug-related arrests. While mitigating conditions under AG ¶ 20 were considered, the disqualifying conditions outlined in AG ¶ 24 and AG ¶ 25 were found to be more significant.

The appeal board affirmed the denial, concluding that the applicant's arguments regarding due process and stress from application delays were insufficient to overcome the established pattern of deceptive conduct. The board emphasized the applicant's failure to demonstrate rehabilitation, ultimately leading to the denial of his security clearance.

Conditions Referenced

Disqualifying

AG ¶ 25raisedCriminal Conduct
AG ¶ 24raisedDrug Involvement

Mitigating

AG ¶ 20rejectedPersonal ConductThe applicant's evidence of rehabilitation was offset by years of deceptive conduct.

Key Rule Quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with national security.’”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedJul 15, 2019
Answer filed—
Hearing heldMay 12, 2021
Decision dateMay 18, 2022Decision affirmed on appeal.

Cite For

Falsification in Security Clearance Applications Under Guideline E
Drug Involvement Under Guideline H
Criminal Conduct Under Guideline J

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 of criminal conduct, drug involvement, and personal conduct. The applicant raised issues regarding due process and the arbitrariness of the decision. The Board affirmed the Administrative Judge's decision, finding no harmful errors in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowLeRoy F. Foreman — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline EGuideline HGuideline J

What the Board reviewed

Due-process / fairness — raised by the applicantRejected
Applicant argued he was denied due process during the adjudication.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended the adverse decision was arbitrary, capricious, or contrary to law.
No specific harmful error alleged — raised by the applicantNot reached
Applicant claimed delays in processing caused unnecessary stress.

Why the Board ruled this way

The Board found no error in the Judge's conclusions regarding the applicant's credibility and the evidence presented. The Judge's decision was supported by substantial evidence and was not arbitrary or capricious.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decision

Appeal Board panel

James F. Duffy — Chair
James E. Moody
Moira Modzelewski

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

APPEARANCES

_______________________________________________ ) In the matter of: )

)

------- )

ISCR Case No. 19-01504

)

) Applicant for Security Clearance ) _______________________________________) DATE: May 18, 2022

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 July 15, 2019, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline J (Criminal Conduct), 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). Department Counsel requested a hearing, which was conducted on May 12, 2021. On June 10, 2021, after the close of the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge LeRoy F. Foreman denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. This case was remanded twice to ensure all of the documents that Applicant submitted were contained in the record and appropriately considered. Those issues have been corrected. In his latest decision, the Judge found in favor of Applicant on the Guideline J and H allegations and

found against him on the Guideline E allegations. The Judge’s favorable findings were not raised as an issue on appeal. In his latest appeal, Applicant raised the following issues: whether delays in the processing of the case caused unnecessary stress, whether he was denied due process, and whether the adverse decision was arbitrary, capricious, or contrary to law. For the reasons stated below, the Judge’s decision is affirmed. Under Guideline E, the SOR alleged that Applicant falsified responses in two security clearance applications (SCAs). In a 2007 SCA, Applicant was asked whether he used marijuana since the age of 16 or in the last 7 years, whichever is shorter. He responded “No” to that question and was granted a security clearance shortly thereafter. Government Exhibit (GE) 1 at 23 and GE 2 at 28. In a 2017 SCA, he responded “No” to a question that asked whether he ever illegally used a controlled substance while possessing a security clearance. GE 2 at 26. In the decision, the Judge found that Applicant was arrested and charged with possession of marijuana in 2009, 2010, and 2011 and that “Applicant testified that he began using marijuana in occasional social settings in 2001, when he was 14 years old, and he used it until about 2013 or 2014. He testified he stopped using it because his employer started random drug testing, and he realized it could jeopardize his job.” Decision at 4. In his whole-person analysis, the Judge concluded: Applicant offered considerable evidence in mitigation, but it is offset by his years of deceptive conduct. He used marijuana for many years while holding a security clearance, but he did not disclose his drug-related arrests to his employer. He lied about his drug involvement in his February 2007 SCA and again in his February 2017 SCA. He lied to a security investigator in September 2018, until the investigator confronted him with his arrest record. Even after admitting his drug involvement to the investigator, he gave inconsistent and implausible explanations for his false answers in his SCA. He eventually admitted at the hearing that he did not disclose his drug involvement because he was afraid it might jeopardize his clearance or his job.1 [Decision at 13.] Applicant does not challenge any of the Judge’s findings of fact. Rather, his brief contains arguments challenging the Judge’s analysis of the evidence. For example, Applicant argues the Judge did not consider the time that has elapsed since his falsifications. The Board has not established "bright-line" guidance regarding the concept of recency. Instead, a recency determination must be made based on careful consideration of the totality of the specific record at hand. See, e.g., ISCR Case No. 99-0018 at 4-5 (App. Bd. Apr. 11, 2000). Based on the record evidence in this case, we find no error in the Judge’s conclusion that he was not convinced that “Applicant has put his long record of concealment and deception behind him.” Decision at 13. 1 Some of this conduct, such as lying to the investigator, was not alleged in the SOR. In the decision, the Judge noted non-alleged conduct could be considered to assess an applicant’s credibility, to evaluate evidence in extenuation, mitigation, and changed circumstances, to consider whether an applicant demonstrated successful rehabilitation, and in conducting a whole-person analysis. Decision at 12, citing ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006).

Applicant also contends the Judge did not consider documents showing his rehabilitation and claims he did not know the reporting requirements upon being granted a security clearance. None of his arguments are sufficient to rebut the presumption that the Judge considered all of the evidence in the record or 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. 15-04856 at 2-3 (App. Bd. Mar. 9, 2017). Applicant argues “miscommunications [between him and the Judge] has cause[d] this case to be prolonged and has caused unnecessary stress . . . .” Appeal Brief at 3. Absent a showing of prejudice to an applicant's rights, the mere passage of time in the processing of a case does not constitute error that warrants any form of corrective action. See, e.g., ISCR Case No. 00-0030 at 3-4 (App. Bd. Sep. 20, 2001). We recognize that security clearance adjudications can be stressful for applicants, and a mere claim of “unnecessary stress” resulting from previous remands is insufficient to establish prejudice meriting relief. Applicant fails to articulate any plausible argument about how his rights were prejudiced because the adjudication was prolonged due to the remands. In his brief, Applicant describes the Judge’s comments and actions regarding his post- hearing submissions as “deceiving.” Appeal Brief at 6. To the extent he is contending that his security clearance adjudication was unfair or that the Judge engaged in misconduct or lacked impartiality, we do not find that argument persuasive. From our review of the record, there is no basis to conclude that the Judge did anything improper. Applicant failed to rebut the presumption that a Judge was impartial, failed to establish his proceeding was conducted in an unfair manner, and failed to show he was denied due process. See, e.g., ISCR Case No. 18-02722 at 5 (App. Bd. Jan. 30, 2020). The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on the record. “The general standard is that a clearance may be granted only when ‘clearly consistent with 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 national security.”

ORDER

The Decision is AFFIRMED. Signed: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board