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ISCR Case 08-07998.a1 — CASE

ISCR Case 08-07998.a1denied

Case Headnote

ISCR Case No. 08-07998.a1

Aug 12, 2009· Hon. Jeffrey D. Billett· appeal

Summary

A cost analyst for a defense contractor and former U.S. Marine was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct). The denial stemmed from the applicant's illegal steroid use and deliberate omissions about this use on his security clearance application.

The judge found substantial evidence that the applicant intentionally failed to disclose his steroid use. These deliberate omissions were a significant factor in the decision.

Ultimately, the applicant failed to mitigate the security concerns related to his illegal steroid use and the misrepresentations on his application. The judge concluded that granting a security clearance would be inconsistent with national security interests, leading to the denial.

Conditions Referenced

Disqualifying

AG ¶ 16raisedPersonal ConductThe applicant's omissions were considered deliberate.

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 issuedJan 2, 2009
Answer filed—
Hearing heldMay 29, 2009
Decision dateAug 12, 2009

Cite For

Deliberate Omissions in Security Clearance Applications Under Guideline E
Evaluation of Substantial Evidence Regarding Drug Involvement Under Guideline H
National Security Interests as a Standard for Granting Clearance

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, criminal conduct, and personal conduct. The Applicant argued that the Government did not provide substantial evidence for the Guideline E concerns and that the Judge misapplied mitigating conditions. The Board affirmed the Judge's decision, finding no error in the evaluation of the evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMark Harvey — denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline JGuideline E

What the Board reviewed

Erroneous finding of fact — raised by the applicantRejected
Applicant argued that the Government did not present substantial evidence of the Guideline E security concern.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant contended that the Judge erred in his application of the pertinent mitigating conditions.

Why the Board ruled this way

The Board found that the Judge properly evaluated the record and determined that the Applicant's omissions were deliberate, thus affirming the adverse decision.

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

Jeffrey D. Billett
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 J; Guideline E DIGEST: The Judge properly considered the entire record in evaluating the deliberate nature of Applicant’s omissions on his security clearance application. Applicant failed to mitigate security concerns arising from his illegal steroid use and from his failure to mention that use during the security clearance investigation. Adverse decision affirmed. CASE NO: 08-07998.a1 DATE: 08/12/2009 DATE: August 12, 2009 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-07998

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Greg T. Rinckey, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On January 2, 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 J (Criminal Conduct), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On May 29, 2009, after the hearing, Administrative Judge Mark Harvey denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30.

FOOTNOTES

1 The Judge’s favorable findings under Guidelines H and J are not at issue in this appeal. 210 U.S.C. § 815. Applicant’s DD 214, attached as an exhibit to GE 2, Response to Interrogatories, shows that he left active duty in October 2005. Applicant raised the following issues on appeal: whether the Government had presented substantial evidence of the Guideline E security concern and whether the Judge erred in his application of the pertinent mitigating conditions.1 Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is a cost analyst for a defense contractor. He joined the U.S. Marine Corps in 1999. From September 2002 until May 2003, while in the Marines, Applicant used one cycle of steroids. A cycle is a four to six week period of frequent steroid injections. The injections occur during the first half of the cycle; during the second half the injections are less frequent or there is no steroid use at all. He also used steroids from March 2005 to April 2005. He was punished under Article 15, Uniform Code of Military Justice,2 for this second cycle of steroid use. On September 13, 2007, Applicant signed his security clearance application (SCA). When asked about drug use he mentioned the steroids injected in 2005, but he omitted the cycle occurring in 2002 to 2003. In a subsequent set of DOHA interrogatories Applicant disclosed the earlier steroid use but omitted the use in 2005. Applicant argues that the Government has not met its burden of producing substantial evidence of Guideline E security concerns arising out of Applicant’s omission of steroid use on his 2007 SCA. In evaluating whether the Government has presented substantial evidence regarding the deliberate nature of a false statement or an omission, the Judge must examine the statement or omission in light of the record as a whole. When an applicant claims that a false answer to a SCA question is not deliberate, the Judge should address explicitly any contrary evidence in the record. ISCR Case No. 07-03307 at 5 (App. Bd. Sep. 26, 2008). In this case, the Judge has examined the omission in light of the record as a whole. He paid particular attention to record evidence that Applicant had made subsequent false statements about his steroid use. His conclusion that Applicant’s omission on the 2007 SCA was willful is sustainable on this record. 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 decision that “it is not clearly consistent with national security to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 14. See also 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: Jeffrey D. Billett Jeffrey D. Billett 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