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ISCR Case 07-04182.a1 — CASE

ISCR Case 07-04182.a1denied

Case Headnote

ISCR Case No. 07-04182.a1

Apr 1, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

A welder, who had held a security clearance since 2004, was denied a renewed clearance due to concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The denial stemmed from his past marijuana use and false statements made during security interviews. Specifically, disqualifying conditions E2.A5.1.2 and E2.A5.2.1 were raised regarding his personal conduct.

While mitigating condition H2.A1 was applied, it was insufficient to overcome the security concerns. The applicant failed to adequately mitigate issues related to his drug use and the false statements. A significant factor in the denial was the applicant's demeanor during the hearing, which raised doubts about his reliability and good judgment.

Ultimately, the appeal board affirmed the denial of the security clearance, emphasizing that the applicant's demeanor and overall reliability were critical to their decision.

Conditions Referenced

Disqualifying

E2.A5.1.2raisedFalse Statements or Misrepresentation
E2.A5.2.1notedCriminal Conduct

Mitigating

H2.A1rejectedNo Evidence of Drug InvolvementThe applicant's claims of favorable evidence were insufficient to mitigate the concerns.

Key Rule Quoted

“A Judge is presumed to have considered all of the evidence in the record, and Applicant failed to rebut that presumption.”

Procedural Posture

SOR issuedMay 8, 2009
Answer filed—
Hearing heldDec 23, 2009
Decision dateApr 1, 2010

Cite For

Failure to Mitigate Drug Use Concerns Under Guideline H
Impact of Demeanor on Credibility Assessments in Security Clearance Cases
Presumption of Evidence Consideration by Judges in Security Clearance Decisions

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 an applicant seeking a security clearance who was denied due to concerns regarding drug use and false statements. The applicant argued that the Judge failed to consider favorable evidence and that the decision was arbitrary. The Board affirmed the Judge's decision, finding no error in the evaluation of the evidence or the conclusions drawn.

Appealed bythe applicant

Applicant representationAttorney

Judge belowLeRoy F. Foreman — 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 contended that the Judge failed to consider record evidence favorable to him.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse security clearance decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision, affirming that the Judge considered the relevant evidence and articulated a satisfactory explanation for the adverse decision.

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

Michael Y. Ra’anan — Chair
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 E DIGEST: Applicant failed to mitigate security concerns arising from his drug use and from his false statements during a security clearance interview. A Judge is presumed to have considered all of the evidence in the record, and Applicant failed to rebut that presumption. Adverse decision affirmed. CASENO: 07-04182.a1 DATE: 04/01/2010 DATE: April 1, 2010 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-04182

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Michael F. Fasanaro, Jr., Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On May 8, 2009, 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 December 23, 2009, after the hearing, 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. The Judge’s favorable findings under Guideline H are not at issue in this appeal. Applicant raised the following issues on appeal: whether the Judge failed to consider record evidence favorable to Applicant and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is a welder employed by a federal contractor. He has held a security clearance since 2004. Applicant was interviewed by security investigators in November 2006 and December 2007. During the interviews, he admitted testing positive for marijuana use in a random urinalysis conducted in March 2006. However, in the December interview, he attributed the positive result to passive inhalation of second-hand marijuana smoke. In a subsequent interview, and during the hearing, Applicant admitted that he had knowingly smoked marijuana prior to the urinalysis. He admitted that he did not correct the interview summary when he had the opportunity. “Applicant was nervous and sometimes argumentative during the hearing . . . His tone and demeanor reflected dislike for being questioned. He testified he found the whole process embarrassing.” Decision at 4. Applicant enjoys an excellent reputation for his work ethic, skill, responsibility, and dependability. His performance evaluations have been high, his most recent an overall rating of 5 points in all areas addressed, the highest rating possible. Applicant contends on appeal that the Judge, in performing his whole-person evaluation, gave no indication of having considered the views of Applicant’s employers. A Judge is presumed to have considered all the evidence in the record. See, e.g., ISCR Case No. 07-00196 at 3 (App. Bd. Feb. 20, 2009); ISCR Case No. 07-00553 at 2 (App. Bd. May 23, 2008). As stated above, the Judge made findings concerning the esteem Applicant enjoys for his work performance and related qualities. The Judge also mentioned this high regard in the whole-person analysis of the decision. However, the Judge plausibly explained why these matters were not enough to mitigate a security concern arising from Applicant’s false statement regarding his marijuana use. “[Applicant’s] reaction to repeated questioning raises doubt about his reliability and good judgment. Given the demanding and sensitive nature of his work, he can expect to be questioned in the future about his work and matters affecting national security. His reaction to repeated questioning about his marijuana use raises doubt about his willingness to provide full, frank, and truthful answers.” Decision at 9. After reviewing the record, the Board concludes 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).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, 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