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ISCR Case 07-02595.a1 — CASE

ISCR Case 07-02595.a1denied

Case Headnote

ISCR Case No. 07-02595.a1

Jan 15, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, represented by counsel, was denied clearance under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The denial stemmed from the applicant's admitted marijuana use on two occasions, which directly contradicted his prior statements that he would abstain from drug use.

The judge's findings highlighted the applicant's questionable judgment, which was deemed to negatively impact his reliability and trustworthiness. Specifically, the applicant's inconsistent statements regarding his drug use were cited as a basis for concern under Guideline E (Personal Conduct) and Guideline H (Drug Involvement).

The appeal board affirmed the denial, concluding that there was substantial evidence to support the judge's determination that the applicant's actions demonstrated a lack of judgment that impugned his reliability and trustworthiness, leading to the final denial of his security clearance.

Conditions Referenced

Disqualifying

AG ¶ 25raisedDrug Involvement
AG ¶ 15raisedPersonal Conduct

Key Rule Quoted

“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 issuedJul 22, 2008
Answer filed—
Hearing heldOct 30, 2008
Decision dateJan 15, 2009

Cite For

Substantial Evidence Supporting Adverse Findings Under Guideline E
Questionable Judgment Impacting Reliability Under Guideline E
Affirmation of Denial Based on Past Drug Use Under Guideline H

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 marijuana use and personal conduct. The applicant argued that the Judge's findings were not supported by substantial evidence and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error despite acknowledging some errors in the Judge's reasoning.

Appealed bythe applicant

Applicant representationAttorney

Judge belowDarlene D. Lokey Anderson — denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that certain findings of fact were not supported by substantial evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge's findings of security concern were supported by substantial evidence, and although there were errors in the Judge's conclusions, they were deemed harmless and did not affect the outcome.

Standard of review applied

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

Appeal Board panel

Michael Y. Ra’anan — Chair
Jean E. Smallin
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 E DIGEST: The Judge found that Applicant had previously stated before a DOHA Judge that it was in the best interests of the Department and himself that he not use marijuana . However, Applicant subsequently used marijuana. The Judge’s findings of security concern are supported by substantial record evidence. Although the Judge’s findings contain error, the Board concludes it is harmless. The Judge erred in concluding that Applicant’s prior testimony was a deliberate falsification. The Judge’s decision had language which is inconsistent with her ultimate determination. However, the Judge’s sustainable findings of fact support her conclusion under Guideline E, in that they illustrate questionable judgment and, therefore, impugn Applicant’s reliability and trustworthiness. Adverse decision affirmed. CASENO: 07-02595.a1 DATE: 01/15/2009 DATE: January 15, 2009 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-02595

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel The Judge’s favorable decision under Guideline H is not at issue in this appeal. For example, the first page of the Judge’s decision makes reference to Guideline F rather than E and H, which the Board concludes is simply a typographical error. Additionally, Applicant asserts that in the past he has used marijuana, rather than having abused it as the Judge found. The Board concludes that the distinction is without security significance under the facts of this case. Applicant asserts that he does not know the evidentiary basis for identifying his use of marijuana in 2002 as having occurred in February of that year. However, Applicant admitted, in his answer to the SOR, that he used marijuana on two separate occasions between January 1999 and February 2002. FOR APPLICANT Charles S. Tigerman, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On July 22, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline H (Drug Involvement) and Guideline E (Personal Conduct)of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On October 30, 2008, after the hearing, Administrative Judge Darlene D. Lokey Anderson denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether certain of the Judge’s findings of fact are supported by substantial record evidence and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no harmful error, we affirm. The Judge made the following pertinent findings of fact: in October 1990, Applicant appeared before a DOHA Administrative Judge in a security clearance hearing, addressing his prior use of marijuana. At the hearing, he was asked if he planned to use marijuana in the future. Applicant replied that he did not intend to do so. He further stated, “I believe it’s in my best interest and the best interests of the Department of Defense that I do not, both because of my participation and role as a leader in my company.” Decision at 2. However, Applicant subsequently used marijuana on two occasions. “He does not know why he used it on these occasions.” Id. The Board concludes that the Judge’s material findings of security concern are supported by substantial record evidence. See Directive ¶ E3.1.32.1. (Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.”) Although Applicant has demonstrated that the Judge’s findings contain error, the Board concludes that such error is harmless. See ISCR Case No. 06- 23112 at 2 (App. Bd. Dec. 31, 2007). Applicant further contends that the Judge erred in her analysis of the Guideline E security concerns. Specifically Applicant persuasively argues that the Judge erred in concluding that Applicant’s 1990 testimony concerning future marijuana use was a deliberate falsification. Additionally, Applicant correctly notes that certain language in the Judge’s decision The Judge’s decision contains the following statement: “Considering all of the evidence, the Applicant has introduced persuasive evidence in rebuttal, explanation or mitigation that is sufficient to overcome the government’s case under Guidelines H and E of the SOR.” Decision at 5. The Board also notes Applicant’s point that the Judge’s formal findings neglect to make explicit reference to subparagraphs 1(b) and (c) of the SOR. See Directive ¶ E2.15. is inconsistent with her ultimate adverse determination. However, the sustainable findings of fact in the Judge’s decision support her adverse conclusion under Guideline E, in that they illustrate “questionable judgment” and, therefore, impugn Applicant’s reliability and trustworthiness. The Board concludes that there is insufficient reason to remand to the case to the Judge for a new decision. Therefore, the Board concludes that identified errors in the decision are harmless. Accordingly, the Board concludes that the Judge’s decision is sustainable in light of the standard set forth in Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”)

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board