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ISCR Case 07-10454.a1 — CASE

Case record

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

Decision Date8/12/2008
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 07-10454.h1) →
Participants
Applicant Representation: Pro Se
Judge: Jean E. Smallin, Michael D. Hipple, William S. Fields
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline HDrug Involvement & Substance Misuse · Against Applicant
- Guideline JCriminal Conduct · Against 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 07-10454.a1denied

Case Headnote

ISCR Case No. 07-10454.a1

Aug 12, 2008· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance due to concerns under Guideline E (Personal Conduct), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct). The denial stemmed primarily from the applicant's history of unlawful drug use and the falsification of his security clearance application.

Specifically, the applicant had a documented history of illegal drug use, which included instances during his military service. Compounding this issue, he failed to disclose this prior drug use on his security clearance application, leading to a finding of falsification.

Although the applicant presented evidence of good duty performance, the judge determined that this was insufficient to mitigate the significant security concerns. The judge emphasized that the applicant's continued drug use while previously holding a security clearance, combined with the falsification, outweighed any mitigating factors, resulting in the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 25raisedDrug Involvement
AG ¶ 15raisedPersonal Conduct
AG ¶ 30raisedCriminal Conduct

Mitigating

AG ¶ 26rejectedDrug InvolvementThe judge found that the applicant's evidence of rehabilitation was insufficient to mitigate the security concerns.
AG ¶ 17rejectedPersonal ConductThe judge did not find the applicant's explanations for his conduct compelling.
AG ¶ 31rejectedCriminal ConductThe applicant's good duty performance did not outweigh the negative implications of his criminal conduct.

Key Rule Quoted

“An applicant with good or exemplary job performance may engage in conduct that has negative security implications.”
— ISCR Case No. 06-11172 at 2 (App. Bd. Sep. 4, 2007)

Procedural Posture

SOR issuedNov 16, 2007
Answer filed—
Hearing heldMay 12, 2008
Decision dateAug 12, 2008

Cite For

Unlawful Drug Use as a Disqualifying Factor Under Guideline H
Falsification of Security Clearance Application as a Disqualifying Factor Under Guideline E
Insufficient Evidence of Rehabilitation to Mitigate Security Concerns.

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 related to drug involvement, personal conduct, and criminal conduct. The applicant argued that the Judge's failure to find mitigation was arbitrary and capricious. The Board affirmed the Judge's decision, finding that the evidence did not compel a favorable outcome despite some evidence of mitigation.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCharles D. Ablard — denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline EGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's failure to find mitigation rendered the decision arbitrary, capricious, and contrary to law.

Why the Board ruled this way

The Board concluded that the Judge examined the relevant data and articulated a satisfactory explanation for his decision, establishing a rational connection between the facts found and the choice made.

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

Michael D. Hipple
Jean E. Smallin
William S. Fields

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; Guideline J DIGEST: Although the Judge found some evidence of mitigation, that did not compel the Judge to reach a favorable security clearance decision. Applicant’s evidence of good duty performance was not sufficient to mitigate security concerns arising from unlawful drug use and falsification of his security clearance application. Adverse decision affirmed. CASENO: 07-10454.a1 DATE: 08/12/2008 DATE: August 12, 2008 In Re: --------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-10454

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 clearance. On November 16, 2007, DOHA issued a statement of reasons advising Applicant of the basis for that decision—security concerns raised under Guideline H (Drug Involvement), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992), as amended (Directive). Applicant requested a hearing. On May 12, 2008, after the hearing, Administrative Judge Charles D. Ablard 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 issue on appeal: whether the Judge’s failure to find that Applicant’s conduct is mitigated renders the Judge’s decision arbitrary, capricious, and contrary to law. The Judge made the following relevant findings of fact in his decision: Beginning in 1996, Applicant used illegal drugs and used prescription drugs illegally. In 1998, Applicant was arrested for driving under the influence and possession of a controlled substance. He plead nolo contendere and was sentenced to perform community service and one year of probation. Applicant completed a pre-trial diversion program on the drug charge, and it was later dismissed. Applicant asserts that when he enlisted in the Army, his recruiter told him that he did not want to hear anything about prior drug use from Applicant. Other than his 1998 arrest and diversion, Applicant did not mention his history of illegal drug use on a security clearance application in 2001 or in his subsequent interview with an investigator. Applicant continued to use drugs while he was in the Army and in possession of a security clearance. After he received a security clearance in September 2003, Applicant’s use of illegal drugs included cocaine (at least twice) between June 2005 and March 2006. Applicant was discharged from the Army and last used illegal drugs at approximately the same time, in March 2006. When Applicant went to work for his current employer after his discharge, he was told that the company did not tolerate illegal drug use during the period of employment and for two years prior to employment. Applicant was forthright in revealing his history of drug abuse in completing a security clearance application in 2007 and in a subsequent security interview. The Judge also found that Applicant had a distinguished military career. He has received consistently high evaluations and certificates of recognition from his current employer. Applicant has moved from the city where he used drugs and no longer associates with the persons he used drugs with. He is engaged and has purchased a home. Applicant admitted to the allegations against him, and those admissions were sufficient to establish the government’s case against him. The burden of proof then shifted to Applicant to rebut, explain, extenuate, or mitigate the case against him. Directive ¶ E3.1.15. Applicant attempted to explain his falsification of his 2001 security clearance application. He presented evidence regarding his successful military career and a favorable job evaluation from his current employer. With regard to Applicant’s work record, the federal government need not wait until an applicant actually mishandles classified material before it can deny or revoke access to such material. Adams v. Laird, 420 F. 2d 230, 238-239 (D.C. Cir. 1969), cert. denied, 397 U.S. 1039 (1970). An applicant with good or exemplary job performance may engage in conduct that has negative security implications. See, e.g., ISCR Case No. 06-11172 at 2 (App. Bd. Sep. 4, 2007). In this case, Applicant admitted to using illegal drugs while in the Army, during a period when he held a security clearance.

Applicant argues that he presented enough evidence of rehabilitation that the Judge should have granted him a clearance. The Judge found some evidence of mitigation. However, that alone did not compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable, or vice versa. An applicant’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-23318 at 2 (App. Bd. Oct. 30, 2007). After reviewing the record as a whole, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for his 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, 158 (1962). Accordingly, the Judge’s ultimate unfavorable security clearance decision is sustainable. See Directive ¶ E3.1.32.1.

ORDER

The Judge’s decision denying Applicant a security clearance is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board