CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 08-08380.a1 — CASE

ISCR Case 08-08380.a1denied

Case Headnote

ISCR Case No. 08-08380.a1

Jun 4, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A defense contractor employee was denied a security clearance under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The denial stemmed from the applicant's conviction for manufacturing illegal drugs and explosive devices.

Further compounding the security concerns, the applicant failed to disclose this criminal history to their employer. The judge identified disqualifying conditions J1 and E2, specifically citing the undisclosed criminal past and the nature of the conviction itself.

Ultimately, the judge concluded that the applicant's failure to disclose their criminal history, combined with the conviction for manufacturing illegal drugs and explosive devices, raised significant doubts about their suitability. Based on the totality of the evidence, granting a security clearance was deemed inconsistent with national security interests.

Conditions Referenced

Disqualifying

J1raisedCriminal Conduct
E2raisedDeliberate Omission of Material Information

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 issuedNov 21, 2008
Answer filed—
Hearing heldMar 25, 2009
Decision dateJun 4, 2009

Cite For

Security Clearance Denial Due to Criminal Convictions Under Guideline J and E
Impact of Failure to Disclose Criminal History on Security Clearance Eligibility
Judicial Assessment of Evidence in Security Clearance Cases

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 the applicant's criminal activity related to drug manufacturing and possession of explosive devices. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no error in the weighing of evidence or in the conclusions reached.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran — denied the clearance

Decided ona hearing

Guidelines belowGuideline JGuideline E

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 was 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 properly weighed the 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 Y. Ra’anan — Chair
Michael D. Hipple
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 J; Guideline E DIGEST: Applicant was convicted of offenses arising from his manufacturing of illegal drugs and explosive devices. Applicant failed to demonstrate that the Judge mis-weighed the evidence or that he failed to consider the record evidence as a whole. Adverse decision affirmed. CASENO: 08-08380.a1 DATE: 06/04/2009 DATE: June 4, 2009 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-08380

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 21, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline J (Criminal Activity) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On March 25, 2009, after the hearing, Administrative Judge Edward W. Loughran 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. The Judge made the following pertinent findings of fact: Applicant is an employee of a defense contractor. He attended college but has not yet earned a degree. In 2004 he was arrested and charged with numerous offenses involving illegal drugs and explosive devices. He pled guilty to one count of “controlled dangerous substance (CDS), manufacture and distribute;” and one count of “destructive device, manufacture, possession, and distribution.” Decision at 2. He was sentenced to 20 years confinement and 5 years probation. All but 29 days of the confinement was suspended. His probation runs through July 2010. Once his probation is completed, the state has agreed not to oppose substituting Probation Before Judgement for the charges, which would remove the conviction from his record. In support of his appeal Applicant has submitted new evidence not contained in the record, which the Board cannot consider. See Directive ¶ E3.1.29. (“No new evidence shall be received or considered by the Appeal Board”). See also ISCR Case No. 08-06518 at 2 (App. Bd. Mar. 3, 2009). Applicant appears to take issue with the Judge’s weighing of the evidence. However, a party’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. 06-17409 at 3 (App. Bd. Oct. 12, 2007). Applicant stated that, at the time of his arrest, he was conducting scientific experiments at his home which involved over-the counter medications often used to produce illegal drugs. He stated that his purpose was to devise a cold medication that could not serve as a basis for the manufacture of illegal drugs. He also stated that he was attempting to develop a transponder to assist in the recovery of amateur-fired rockets as well as an “electromagnetic field resistant blasting cap.” Decision at 3. As a consequence he had in his possession materials that could have been used to develop explosives. Applicant testified that he never intended to do anything wrong and that he pled guilty to the offenses in question due to the prohibitive expense of defending himself in a litigated trial. A review of the record demonstrates that the Judge took into account Applicant’s testimony and other matters which he presented in his own behalf, including evidence of his good job performance. However, he also noted that, at the close of the record, Applicant had not advised his employer of his criminal convictions, with a consequence that he might be subject to coercion. Moreover, the Judge noted that Applicant admitted, inter alia, “that he may actually have manufactured methamphetamine.” Id at 6-7. The entirety of the record evidence left the Judge with “questions and doubts” as to Applicant’s suitability for a security clearance. Id. at 9. After reviewing the record, 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, 168 (1962)). The Judge’s decision that “it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 10. 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: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board