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ISCR Case 08-07759.a1 — CASE

ISCR Case 08-07759.a1denied

Case Headnote

ISCR Case No. 08-07759.a1

Mar 23, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

A long-term defense industry employee was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The denial stemmed from the applicant's intentional omission of information regarding his drug use and a prior arrest on his security clearance application.

The judge found substantial evidence indicating that the applicant deliberately falsified his application by failing to disclose these details. This finding directly supported the conclusion that the omissions were intentional.

Ultimately, the adverse decision to deny the security clearance was affirmed on appeal, based on the established intentional omissions related to drug involvement and a prior arrest.

Conditions Referenced

Disqualifying

HraisedDrug Involvement
EraisedPersonal 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 issuedMar 18, 2009
Answer filedMar 1, 2009Applicant's answer to the SOR stated it was transmitted by letter.
Hearing held—Applicant initially stated he did not desire a hearing.
Decision dateMar 23, 2010Adverse decision affirmed on appeal.

Cite For

Intentional Omissions in Security Clearance Applications Under Guideline E and Guideline H
Substantial Evidence Standard in Security Clearance Cases
Affirmation of Adverse Decisions Based on Applicant's Credibility and Intentions

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 allegations of drug involvement 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 in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

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 the Judge's finding of intentional falsification of his security clearance application was 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 regarding the Applicant's intentions were supported by substantial evidence and that the Judge did not err in weighing the evidence or in her conclusions. The adverse decision was affirmed based on the record and applicable standards.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo 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: The Judge’s findings about Applicant’s intentions are supported by substantial record evidence. Adverse decision affirmed. CASENO: 08-07759.a1 DATE: 03/23/2010 DATE: March 23, 2010 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-07759

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The SOR is undated. Applicant’s answer to the SOR stated that it was transmitted to him by letter dated March 18, 2009. The Judge utilized that date in her summary of the case history. Decision at 1.

Applicant’s answer to the SOR stated that he did not desire a hearing. The record is silent as to whether he changed his mind or whether Department Counsel requested the hearing, in accordance with Directive ¶¶ E3.1.7-8. Applicant was represented by counsel at the hearing. Applicant states in the Appeal Brief that he did not request a hearing and that the Judge erred in stating otherwise. He does not raise an issue of denial of due process. The Judge’s error is harmless. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On March 18, 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). The Judge conducted a hearing. On November 24, 2009, after the hearing, Administrative Judge Darlene D. Lokey Anderson denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge’s finding that Applicant intentionally falsified his security clearance application (SCA) is supported by substantial record evidence; whether the Judge’s weighing of the evidence is erroneous; and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge found that Applicant has been employed in the Defense industry since 1986. He has held a security clearance for the past 23 years. He used marijuana in 1986 “on a quarterly basis;” from 1986 to 1994 “on a periodic basis;” and in 2005 “three or four times.” Decision at 2. In 1994 he was arrested for possession of marijuana and for public drunkenness. In completing his SCA, Applicant omitted information about (1) his use of marijuana in 2005; (2) his use of marijuana while holding a security clearance; and (3) his 1994 arrest. The Judge found that these omissions were deliberate. Applicant is an excellent worker who enjoys a good reputation for stability, reliability, and competence. On appeal, Applicant denies that he intentionally omitted the above-described information from his SCA. He points to his testimony concerning difficulty he had in completing the electronic version of the SCA. Having examined the Judge’s decision and the record, we conclude that her findings about Applicant’s intentions 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.”). The Judge explicitly considered Applicant’s testimony regarding his intentions. Decision at 3. However, For example, she pointed to inconsistent statements by Applicant as to his reasons for leaving out the requested information. she plausibly explained why the record as a whole supported her finding of intentional omissions.3 We conclude that the challenged findings are not in error. Neither do we find any basis for concluding that the Judge weighed the evidence in an erroneous manner. See, e.g., ISCR Case No. 06-21819 at 2 (App. Bd. Aug. 13, 2009); ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007) (The Board will not disturb a Judge’s weighing of the evidence unless it is arbitrary, capricious, or contrary to law). 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