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ISCR Case 05-00151.a1 — CASE

ISCR Case 05-00151.a1denied

Case Headnote

ISCR Case No. 05-00151.a1

May 8, 2007· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance due to concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The denial was based on the applicant's history of making false statements about drug use on multiple security clearance applications, which raised Disqualifying Condition E2.

Additionally, the applicant had a conviction for operating a vehicle under the influence of alcohol, falling under Disqualifying Condition J1. The judges determined that the applicant's conduct was serious and voluntary.

Ultimately, the judges found no evidence of mitigation for these issues and concluded there was no assurance that such conduct would not recur. Consequently, the applicant's security clearance was denied.

Conditions Referenced

Disqualifying

J1raisedCriminal Conduct
E2raisedPersonal Conduct

Key Rule Quoted

“The Appeal Board shall give deference to the credibility determinations of the Administrative Judge.”
— Directive ¶ E3.1.32.1

Procedural Posture

SOR issuedAug 26, 2005
Answer filed—
Hearing heldSep 29, 2006
Decision dateMay 8, 2007

Cite For

False Statements Regarding Drug Use Under Guideline E
Criminal Conduct Under Guideline J
Credibility Determinations of the Administrative Judge

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 concerns under Guidelines E and J. The applicant argued that the Judge erred in finding that he had not mitigated these concerns. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationAttorney

Judge belowPhilip S. Howe — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline J

What the Board reviewed

Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argued that the Judge erred in concluding that he had not mitigated the Guidelines E and J security concerns.

Why the Board ruled this way

The Board concluded that the Judge articulated a rational connection between his findings and the adverse conclusion, and the decision was not arbitrary, capricious, or contrary to law.

Standard of review applied

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

Appeal Board panel

Jean E. Smallin
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 E; Guideline J DIGEST: The Judge articulated a rational connection between his findings and ultimate adverse conclusion. Adverse decision affirmed. CASENO: 05-00151.a1 DATE: 05/08/2007 DATE: May 8, 2007 In Re: -------- SSN: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 05-00151

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Julie R. Edmunds, Esq, Department Counsel FOR APPLICANT Robert W. Gevers, II, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 26, 2005, DOHA issued a statement of reasons advising Applicant of the basis for that decision–security concerns raised under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan.2, 1992, as The SOR was amended at the hearing on the Government’s motion without objection from Applicant. The Judge noted an inconsistency in his 2003 statements. Applicant states in his SF 86 that he used crack from 1994 until 1997, but in a subsequent interview he states that the ending date was 1996. Decision at 3. amended)(Directive). Applicant requested a hearing. On September 29, 2006, after the hearing, Administrative Judge Philip S. Howe denied Applicant’s request for a security clearance. Applicant submitted a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant asserts the following issue on appeal: whether the Judge erred in concluding that Applicant had not mitigated the Guidelines E and J security concerns. We affirm the decision of the Judge. Applicant has not challenged the Judges findings of fact. Therefore we rely on those findings in resolving the issue before us on appeal. See ISCR Case No. 03-11765 at 3 (App. Bd. Apr. 11, 2005). The Judge found that in security clearance applications in 1988 and 1996 Applicant made a series of false statements concerning his involvement with drugs–marijuana, cocaine, crack cocaine, and LSD. Applicant finally admitted the extent of his involvement during a security clearance investigation in 2003. Additionally the Judge found that Applicant was charged with and convicted of operating a vehicle under the influence of alcohol. In his decision, the Judge acknowledged that Applicant had finally admitted his drug involvement but concluded that Applicant’s false statements constituted a “pattern of behavior intended to hide Applicant’s lengthy history of drug use . . .” Decision at 6. The Judge went on to state that Applicant’s “conduct is serious, voluntary . . . and there is no assurance that it will not occur again in the future,” particularly in view of Applicant’s [having] promised investigators in 1989 that he would not use illegal drugs again yet having continued to do so. Id. Significantly, the Judge stated that he did not believe Applicant’s 2003 statement. See Directive ¶ E3.1.32.1 (“[T]he Appeal Board shall give deference to the credibility determinations of the Administrative Judge.”); ISCR Case No. 02-03186 at 3 (App. Bd. Feb. 16, 2006). Based upon the foregoing, the Judge concluded that Applicant had not met his burden of producing sufficient evidence to mitigate the Government’s security concerns. Examining the decision in light of the record, we conclude that the Judge has articulated a rational connection between his findings and his ultimate unfavorable conclusion. See, e. g., ISCR Case No. 03-00577 at n. 4 (App. Bd. Dec. 11, 2006). Given the Judge’s findings, unchallenged on appeal, we conclude that his decision is neither arbitrary, capricious, nor contrary to law. See ISCR Case No. 00-0382 at 4-5 (App. Bd. Jun. 19, 2001).

ORDER

The Judge’s decision denying Applicant a clearance is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin 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