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ISCR Case 04-12556.a1 — CASE

Case record

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

Decision Date4/27/2007
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 04-12556.h1) →
Participants
Judge: Jeffrey D. Billett, James E. Moody, William S. Fields
Applicant Representation: Pro Se
Government Counsel: James B. Norman
Guidelines Evaluated
- 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.
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ISCR Case 04-12556.a1denied

Case Headnote

ISCR Case No. 04-12556.a1

Apr 27, 2007· Hon. Jeffrey D. Billett· appeal

Summary

An applicant, representing himself, was denied a security clearance based on adverse findings under Guideline E (Personal Conduct), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct). The denial was primarily due to the applicant's drug use while holding a security clearance, which demonstrated a lack of judgment and trustworthiness.

Additionally, the judge found that the applicant made deliberate and intentional omissions on his security clearance application, constituting falsification. These actions triggered disqualifying conditions E2.A5.1.2 and E2.A5.2.1. While mitigating conditions H2.A1.1 and J2.A1.1 were considered, they were insufficient to overcome the security concerns.

The appeal board affirmed the denial, concluding that the judge's findings were rational and legally permissible, particularly emphasizing the applicant's demonstrated lack of judgment and trustworthiness. The security clearance was ultimately DENIED.

Conditions Referenced

Disqualifying

E2.A5.1.2raisedDrug Involvement
E2.A5.2.1raisedFalsification of Information

Mitigating

H2.A1.1appliedDrug Use Not Recent
J2.A1.1appliedCriminal Conduct Not Recent

Key Rule Quoted

“An applicant’s security related conduct can be alleged under more than one Guideline and, in an appropriate case, can be given independent weight by an administrative judge under different guidelines.”
— ISCR Case No. 03-05072 at 6 (App. Bd. July 14, 2005)

Procedural Posture

SOR issuedAug 31, 2005
Answer filed—
Hearing heldAug 28, 2006
Decision dateApr 27, 2007

Cite For

Adverse Findings Under Guideline E Regarding Drug Use
Deliberate Falsification of Security Clearance Application
Independent Weight of Conduct Under Multiple 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 under multiple guidelines, including drug involvement and falsification. The applicant argued that the Judge erred in weighing evidence and reached arbitrary conclusions. The Board affirmed the Judge's decision, finding no harmful error in the conclusions reached.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPhillip S. Howe — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline HGuideline JGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge's unfavorable conclusion under Guideline E regarding past drug use was error, given a favorable finding under Guideline H.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's unfavorable conclusions about falsifications were arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board affirmed the Judge's decision, finding that the Judge's conclusions were supported by substantial evidence and not arbitrary or capricious. The Board noted that the Judge properly considered the applicant's conduct under multiple guidelines and articulated a rational basis for the differing conclusions.

Standard of review applied

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

Appeal Board panel

Jeffrey D. Billett
William S. Fields
James E. Moody

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 J; Guideline E DIGEST: The Board need not address Applicant’s factual explanation for conduct which was resolved in Applicant’s favor and not appealed by Department Counsel. An applicant’s conduct maybe alleged under more than one guideline. In this case, it there is a rational basis for alleging Applicant’s drug use under both Guideline E and Guideline H. Adverse decision affirmed. CASENO: 04-12556.a1 DATE: 04/27/2007 DATE: April 27, 2007 In Re: -------------- SSN: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 04-12556

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security The SOR was amended on motion of the government to add allegations and rearrange allegations under different paragraphs. The amendments were made without objection by the Applicant. clearance. On August 31, 2005, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline H (Drug Involvement), Guideline J (Criminal Conduct) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended)(Directive). Applicant requested a hearing. On August 28, 2006, after the hearing, Administrative Judge Phillip S. Howe denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issues on appeal: whether the Judge’s unfavorable conclusion under Guideline E regarding Applicant’s past drug use was error, given the fact that the Judge found in Applicant’s favor regarding the same drug use under Guideline H; and whether the Judge’s unfavorable conclusions about Applicant’s falsifications were arbitrary, capricious, or contrary to law. The Board affirms the Judge’s decision. Applicant devotes a significant portion of his appeal brief speaking to the issue of his criminal conduct that was alleged under Guideline J, and portions of which were alleged under Guideline E. The Board need not comment on Applicant’s various factual expositions and arguments in this area since the Judge made formal findings in favor of Applicant under Guideline J and those portions of Guideline E dealing with his criminal conduct, and there was no cross-appeal by Department Counsel. Applicant notes that the Judge ultimately found in his favor regarding an allegation of 1998 drug use, but then ruled against him when the same substantive conduct was alleged under Guideline E. Applicant appears to be arguing that Guideline E does not provide any independent basis for an adverse formal finding after the Judge made a favorable formal finding under Guideline H involving the same conduct. Applicant’s argument lacks merit. An Applicant’s security related conduct can be alleged under more than one Guideline and, in an appropriate case, can be given independent weight by an administrative judge under different guidelines. See, e.g., ISCR Case No. 03-05072 at 6 (App. Bd. July 14, 2005). In this case, there is a rational basis for an SOR allegation involving Applicant’s drug use to be included under both Guideline H and Guideline E, and it was therefore legally permissible for the Judge to consider Applicant’s conduct under both and to reach different conclusions under both, so long as the Judge articulated a rational basis for his conclusions. Here, the Judge based his unfavorable conclusion under Guideline E on the fundamental concern of that Guideline relating to conduct demonstrating a lack of judgment and trustworthiness. The Judge relied to a considerable extent on Applicant’s use of drugs while he held a DoD security clearance as a basis for his unfavorable resolution of the conduct under Guideline E. Such a resolution is not inconsistent with the Judge’s conclusion that the same conduct was mitigated under Guideline H, inasmuch as that Guideline, unlike Guideline E, does not explicitly express a concern about conduct that reflects adversely upon aspects of applicant’s judgment or trustworthiness that go beyond drug use. Applicant argues that he did not deliberately falsify his security clearance application by failing to disclose adverse information about his drug use, criminal involvements, and security clearance revocation. The Board does not find this argument persuasive. The Judge had the opportunity to consider Applicant’s explanation for why he failed to disclose the information in question on his security clearance application. The Judge was not bound, as a matter of law, to accept or reject Applicant’s explanation. A review of the Judge’s decision reveals that the Judge considered Applicant’s explanation in light of the record evidence as a whole, and concluded there was a sufficient basis to find that Applicant’s omissions were deliberate and intentional. On this record, the Judge’s finding of deliberate falsification is sustainable. See Directive ¶ E3.1.32.1 Applicant has not demonstrated that the Judge’s unfavorable conclusions regarding falsification are arbitrary, capricious, or contrary to law.

ORDER

The decision of the Administrative Judge denying Applicant a clearance is AFFIRMED. Signed: Jeffery D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board