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ISCR Case 08-09051.a1 — CASE

ISCR Case 08-09051.a1denied

Case Headnote

ISCR Case No. 08-09051.a1

Jan 28, 2011· Hon. Michael Y. Ra'anan· appeal

Summary

A defense contractor employee was denied a security clearance under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The denial stemmed from multiple false official statements made by the applicant over several years, which raised concerns under Disqualifying Condition AG ¶ 16 and AG ¶ 25.

During the hearing, the judge found the applicant's explanations lacked credibility. Additionally, the applicant's drug use occurred while already holding a security clearance, further contributing to the security concerns.

While Mitigating Conditions AG ¶ 20 and AG ¶ 21 were considered, they were not sufficient to overcome the disqualifying factors. The appeal board upheld the denial, emphasizing the applicant's drug use and dishonesty as significant security risks.

Conditions Referenced

Disqualifying

AG ¶ 16raisedPersonal Conduct
AG ¶ 25raisedDrug Involvement

Mitigating

AG ¶ 20rejectedPersonal ConductThe judge found the applicant's falsifications unmitigated.
AG ¶ 21appliedDrug InvolvementThe judge noted that the applicant's most recent marijuana use was partly mitigated.

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 issuedApr 13, 2010
Answer filed—
Hearing heldNov 15, 2010
Decision dateJan 28, 2011

Cite For

Credibility Issues in Security Clearance Cases
Impact of False Statements on Clearance Eligibility
Consideration of Drug Involvement Under Security Guidelines

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 security concerns under Guideline H and Guideline E. The Applicant argued that the Judge erred in applying mitigating conditions and the whole person concept. The Board affirmed the Judge's decision, finding no harmful error in the application of the law or the facts.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJennifer I. Goldstein — denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline E

What the Board reviewed

Mitigation wrongly applied / not applied — raised by the applicantRejected
The Judge erred in her application of the mitigating conditions.
Whole-person analysis — raised by the applicantRejected
The Judge erred in applying the whole person concept.

Why the Board ruled this way

The Board affirms the Judge’s adverse conclusions under Guideline E and the whole-person concept based on the Applicant’s numerous false official statements and the Judge's credibility determinations.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan — Chair
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 DIGEST: In light of Applicant’s numerous false official statements over the years and the conclusion that Applicant made a not credible statement at the Hearing. The Board affirms the Judge’s adverse conclusions under Guideline e and the whole-person concept. Adverse decision sustained. CASENO: 08-09051.a1 DATE: 01/28/2011 DATE: January 28, 2011 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-09051

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT John N. Griffith, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On April 13, 2010, 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). Applicant requested a hearing. On November 15, 2010, after the hearing, Administrative Judge Jennifer I. Goldstein 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 erred in her application of the mitigating conditions and whether the Judge erred in applying the whole person concept. Consistent with the following discussion, we affirm the decision of the Judge. The Judge made the following pertinent findings of fact: Applicant is an employee of a Defense contractor. He is married. Applicant used marijuana 10-15 times until his graduation from college in 2002. Applicant and his wife used marijuana on two consecutive days on a trip to Amsterdam in 2007. In 2003 Applicant failed to disclose his drug use on a security clearance application (SCA) and in a follow-up interview four months later. In 2008 Applicant filled out another SCA . This time he reported the 2007 use but not the earlier use. Applicant was interviewed in August 2008 and discussed the 2007 use, but again he denied any other drug use in the last seven years. In 2009 Applicant disclosed his earlier drug use. Applicant enjoys a good reputation among friends and colleagues. In the Analysis portion of her decision, the Judge discussed Applicant’s multiple falsifications and found one of his explanations offered at the hearing for one of his falsifications not credible. The Judge found the falsifications unmitigated although she discussed some mitigating conditions. She noted that his most recent marijuana use was while holding a security clearance. Nonetheless, she found the marijuana use partly mitigated. In light of Applicant’s numerous false official statements over several years and the Judge’s sustainable conclusion that one of Applicant’s statements at the hearing was not credible, the Board affirms the adverse conclusions under Guideline E and under the whole-person concept. Those adverse conclusions influence any analysis of Applicant’s drug history. Therefore, while the Board need not agree with the Judge’s adverse conclusions under Guideline H, we conclude they are not erroneous. The record supports a conclusion 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: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board