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ISCR Case 08-02421.a1 — CASE

ISCR Case 08-02421.a1denied

Case Headnote

ISCR Case No. 08-02421.a1

Mar 3, 2010· Hon. Michael D. Hipple· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance based on Guideline E (Personal Conduct), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct). The denial stemmed from the applicant's deliberate omission of recent methamphetamine use from her security clearance application.

The judge determined that this omission was intentional and significant to national security interests. Disqualifying conditions AG ¶ 25, AG ¶ 15, and AG ¶ 30 were raised in the decision.

Ultimately, the judge affirmed that the applicant's history of drug use and the circumstances surrounding her application, particularly the intentional misrepresentation, rendered her ineligible for a security clearance. The application was therefore denied.

Conditions Referenced

Disqualifying

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

Key Rule Quoted

“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)

Procedural Posture

SOR issuedMay 29, 2009
Answer filed—
Hearing heldDec 10, 2009
Decision dateMar 3, 2010

Cite For

Deliberate Omission of Drug Use in Security Clearance Applications
Impact of Drug Involvement on Security Clearance Decisions
Standard for Granting Security Clearances in Relation to National Security Interests

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 security clearance denial based on the applicant's omission of recent methamphetamine use from her application. The Board affirmed the Administrative Judge's decision, finding no harmful error in the ruling that the omission was deliberate and raised security concerns.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRichard A. Cefola — 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 adverse security clearance decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's decision, affirming that the Judge's findings were supported by substantial evidence and articulated a rational connection between the facts and the decision 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
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 Guideline J DIGEST: The Judge found that Applicant deliberately omitted her most recent methamphetamine use from her security clearance application. Adverse decision affirmed. CASENO: 08-02421.a1 DATE: 03/03/2010 DATE: March 3, 2010 In Re: -------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-02421

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Samuel Bluck, Esq. The Judge made favorable findings for Applicant under paragraph 1 (Guideline H) and subparagraphs 2(a) and 3(c). Those findings are not at issue in this appeal.

Applicant testified as to her understanding that the charges were dismissed due to an unlawful search and seizure. Tr. at 112. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On May 29, 2009, DOHA issued a statement of reasons (SOR) 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 December 10, 2009, after the hearing, Administrative Judge Richard A. Cefola denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm.1 The Judge made the following pertinent findings of fact: Applicant has a history of methamphetamine use, starting in about 1999. Her use increased until it became a daily habit in 2002 and 2003. She subsequently entered a drug rehabilitation facility, leaving it in January 2004. She participated in an aftercare program for two months thereafter, though she returned to methamphetamine use. In February 2006 Applicant was arrested for, inter alia, possession of methamphetamine. This charge was dismissed. In February 2007 Applicant completed her security clearance application (SCA). One question asked if Applicant had used any controlled substances within the previous 7 years. Applicant mentioned her methamphetamine use from 2001 until 2003. She omitted her subsequent use following her participation in the drug rehabilitation program. Applicant included the following comment in her answer: “I was using for a long time and didn’t stop until receiving help in a rehabilitation center[.]” Decision at 3; Government Exhibit 1, SCA dated February 2, 2007, at 38. The Judge concluded that this omission of her post-treatment methamphetamine use was deliberate. In her brief, Applicant cites to previous decisions by the Appeal Board which she contends support her case on appeal. We conclude that these cases are distinguishable from Applicant’s and do not support a conclusion that the Judge’s decision is erroneous. 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 D. Hipple Michael D. Hipple 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