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ISCR Case 19-03941 — CASE

Case record

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

Decision Date1/21/2022
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 19-03941) →
Participants
Judge: Moira D. Modzelewski, James E. Moody, James F. Duffy
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline DSexual Behavior · For Applicant
- Guideline EPersonal Conduct · Against Applicant
- Guideline HDrug Involvement & Substance Misuse · For Applicant
- Guideline JCriminal Conduct · For 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 19-03941denied

Case Headnote

ISCR Case No. 19-03941

Jan 21, 2022· Hon. Moira D. Modzelewski· appeal

Summary

A 32-year-old defense contractor was denied a security clearance due to concerns under Guideline D (Sexual Behavior), Guideline E (Personal Conduct), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct). The applicant admitted to drug use and soliciting prostitution, which were central to the denial.

Specifically, the applicant failed to disclose his drug use on his 2015 SF 86 form and concealed it from his Facility Security Officer in 2017. This pattern of dishonesty, coupled with the admitted drug use and solicitation, led the judge to conclude that the applicant lacked credibility and demonstrated poor judgment.

While mitigating conditions were considered under Guidelines D, H, and J, the disqualifying conditions related to personal conduct (AG E2.a, AG E2.c, AG E2.d) ultimately prevailed. The appeal board upheld the denial, emphasizing the applicant's consistent dishonesty and poor judgment as the primary reasons for the unfavorable decision.

Conditions Referenced

Disqualifying

AG E2.araisedDeliberate Omission of Information From a Security Clearance Application
AG E2.craisedFailure to Report Illegal Drug Use to the Facility Security Officer
AG E2.draisedCriminal Conduct, Including Solicitation of Prostitution

Mitigating

AG D3.aappliedThe Behavior Occurred a Long Time Ago and There Is No Evidence of Recurrence
AG H3.aappliedThe Applicant Has Successfully Completed Rehabilitation or Treatment
AG J3.aappliedThe Criminal Conduct Was Isolated and Occurred Under Extenuating Circumstances

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 issuedAug 28, 2020
Answer filed—
Hearing heldOct 13, 2021
Decision dateJan 21, 2022

Cite For

Issues of Poor Judgment and Dishonesty Under Guideline E
Failure to Disclose Drug Use and Solicitation of Prostitution
The Application of Mitigating Conditions Across Different Guidelines

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 drug use and solicitation of prostitutes. The applicant argued that the Judge's decision was arbitrary and capricious for not properly considering mitigating evidence. The Board affirmed the Judge's decision, finding it supported by substantial evidence and rationally connected to the facts.

Appealed bythe applicant

Applicant representationAttorney

Judge belowEdward W. Loughran — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline DGuideline EGuideline HGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge failed to properly consider all available evidence, rendering his adverse decision arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and articulated a rational connection between the facts found and the choice made. The Judge's focus on the common thread of poor judgment and dishonesty was reasonable and aligned with the standards for evaluating security clearance eligibility.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

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. 19-03941

)

) Applicant for Security Clearance ) _______________________________________) DEPARTMENT OF DEFENSE DEFENSE LEGAL SERVICES AGENCY DEFENSE OFFICE OF HEARINGS AND APPEALS APPEAL BOARD POST OFFICE BOX 3656 ARLINGTON, VIRGINIA 22203 (703) 696-4759 Date: January 21, 2022

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Jacalyn E. Crecelius, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On August 28, 2020, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision – security concerns raised under Guideline D (Sexual Behavior), Guideline E (Personal Conduct), Guideline H (Drug Involvement and Substance Misuse), and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant initially requested a decision on the written record, but subsequently elected a hearing. On October 13, 2021, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Edward W. Loughran denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Under Guideline H, the SOR alleged marijuana use from 2007 to 2016 and one use of psilocybin mushrooms in 2016, including use of both substances while granted access to classified information. Under Guideline D, the SOR alleged solicitation of prostitutes on at least three occasions between 2015 and 2019. Under Guideline J and Guideline E, the drug use and prostitution allegations were cross-alleged. Additionally, under Guideline E, the SOR alleged that

Applicant failed to disclose his marijuana use on his 2015 SF 86 and that he intentionally concealed his drug use from his Facility Security Officer in 2017 after becoming aware of his duty to self- report. Applicant admitted all allegations. The Judge found in favor of Applicant on the Guideline H, D, and J allegations and against him on the Guideline E allegations. The Judge’s favorable findings were not raised as an issue on appeal. Applicant raised the following issue on appeal: whether the Judge failed to properly consider all available evidence, rendering his adverse decision arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact and Analysis Applicant is 32 years old. After securing his current job with a defense contractor in 2015, Applicant submitted a Questionnaire for National Security Position (SF 86), in which he intentionally failed to disclose that he used marijuana between 2007 and 2009 and again between 2014 and 2015. After receiving his security clearance in 2015, Applicant continued to use marijuana irregularly. His last use of marijuana was in October 2016, at which time he also consumed psilocybin mushrooms. Since that occasion, Applicant has used no illegal substances. In July 2017, Applicant applied for a position that required a top secret clearance. In the course of that job application process, Applicant was alerted to the gravity of his continued drug use and to his affirmative duty to self-report. He delayed reporting to his Facility Security Officer (FSO) in order to complete a project, but then self-reported in October 2017. In November 2017, Applicant submitted another SF 86, in which he fully reported his illegal drug use, estimating that he used marijuana fewer than 20 times between 2007 and 2016. In 2018, Applicant met with a background investigator, confirmed the drug use, and further disclosed that he had paid for the services of prostitutes in Mexico in 2015 and 2016. In his July 2019 response to DOD interrogatories, Applicant reported that he had engaged the services of a prostitute in Amsterdam the prior month. Prior to his hearing, Applicant was evaluated by a licensed clinical social worker (LCSW), with whom he discussed his substance abuse and encounters with prostitutes. She concluded that there was no diagnosis and that Applicant was not at risk of relapse. Applicant’s statements to the LCSW about his drug use and involvement with prostitutes were, in pertinent details, inconsistent with his testimony at the hearing and his earlier disclosures. The Judge found in favor of Applicant on the Guideline D, Guideline H, and Guideline J allegations, concluding that the behaviors of concern were mitigated by the passage of time and unlikely to recur. Under Guideline E, however, the Judge found against Applicant on all allegations: his drug use and solicitation of prostitutes, his falsification of the 2015 SF 86, and his failure to self-report drug use to his FSO: There is a common thread running through Applicant’s misconduct: poor judgment and dishonesty. He lied about his drug use on his SF 86, and then continued to use illegal drugs while holding a security clearance. He discussed his involvement with

prostitutes during his June 2018 background interview, and then he engaged the services of a prostitute in Amsterdam in June 2019. He was less than candid in how he reported his conduct to the LCSW during his evaluation, and I have good reason to question his credibility. While I believe that specific conduct (drugs, prostitutes) is unlikely to recur, I am unable to conclude that other problematic conduct is unlikely to recur. The . . . mitigating conditions are insufficient to overcome ongoing concerns about Applicant’s judgment, reliability, trustworthiness, and honesty. [Decision at 10.]

DISCUSSION

Applicant has not challenged any of the Judge’s specific findings of fact. Rather, he contends that the Judge erred in two regards: first, under Guideline E, he failed to apply the mitigation evidence that he considered favorably under Guidelines D, H, and J; and, second, he failed to properly apply the whole-person concept. Consequently, Applicant argues, the Judge’s decision on the Guideline E allegations was arbitrary, capricious, and contrary to law. As an example, Applicant argues that the Judge found the security concerns under Guidelines D, H, and J to be mitigated in part due to the passage of time, but “refused to use this pattern of reasoning” when considering the Guideline E concerns. Appeal Brief at 8. Applicant contends that “[p]er the directive, the very mitigating circumstances included for Guidelines D, H, and J are also applicable to Guideline E.” Id. However, it is well-established that a Judge may weigh the same evidence differently under different Guidelines. See, e.g., ISCR Case No. 16-02483 at 2 (App. Bd. Jun. 11, 2018). Moreover, a finding of mitigation under one Guideline does not compel a similar finding under another. See, e.g., ISCR Case No. 13-01281 at 4 (App. Bd. Aug. 4, 2014). In considering an applicant’s claim that a Judge has treated two or more Guidelines inconsistently, we examine the record and the Directive to determine if there is a rational basis for the Judge’s decision. In this case, the Judge’s favorable conclusion under Guidelines D, H, and J rested on evidence that the drug use and solicitation of prostitutes was attenuated by time and that Applicant had matured and was unlikely to return to such behaviors. Under Guideline E, however, the Judge focused on a “common thread” of poor judgment and dishonesty that ran through all of Applicant’s misconduct, to include not only the drug use and solicitation, but a falsification and failure to report. Decision at 10. This focus was reasonable, as judgment and candor are qualities explicitly addressed under Guideline E. Applicant has not shown the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Neither has he rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 19-01400 at 2 (App. Bd. Jun. 3, 2020). This record supports a conclusion that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The Judge’s adverse 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: 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