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ISCR Case 08-10008.a1 — CASE

ISCR Case 08-10008.a1denied

Case Headnote

ISCR Case No. 08-10008.a1

Dec 29, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance due to significant drug involvement and criminal conduct, specifically under Guideline H (Drug Involvement) and Guideline J (Criminal Conduct). The appeal board affirmed the denial, upholding the judge's findings and application of mitigating conditions.

Key disqualifying conditions included the applicant's use of methamphetamine ten times between May 2005 and January 2007. Additionally, the applicant faced a felony charge for mailing methamphetamine to himself.

The applicant subsequently pled guilty to illegal possession of methamphetamine and received a probation sentence. These factors, particularly the methamphetamine use and felony charge, were pivotal in the decision to deny the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 25raisedCriminal Conduct
AG ¶ 24raisedDrug Involvement

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 12, 2009
Answer filed—
Hearing heldSep 25, 2009
Decision dateDec 29, 2009

Cite For

Affirmation of Denial Based on Drug Involvement Under Guideline H
Affirmation of Denial Based on Criminal Conduct Under Guideline J
Standards for Granting Security Clearance Related 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 an applicant seeking a security clearance who had concerns raised under Guideline J and Guideline H due to his use and possession of methamphetamine. The Board affirmed the Administrative Judge's decision, finding no harmful errors in the Judge's findings or application of mitigating conditions.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJuan J. Rivera — denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant alleged that the Judge made harmful errors in his findings of fact.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argued that the Judge erred in his application of the Guidelines H and J mitigating conditions.
Whole-person analysis — raised by the applicantRejected
Applicant contended that the Judge erred in his whole person analysis.

Why the Board ruled this way

The Board found no harmful error in the Judge's findings of fact or application of mitigating conditions, affirming the decision to deny the security clearance.

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
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 J; Guideline H DIGEST: Applicant’s security concerns arose from his use and possession of methamphetamine. Applicant failed to demonstrate that the Judge erred in his findings of fact or in his application of the mitigating conditions. Adverse decision affirmed. CASENO: 08-10008.a1 DATE: 12/29/2009 DATE: December 29, 2009 In Re: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-10008

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Eric Borgstrom, Esq., Department Counsel FOR APPLICANT Kathleen E. Voelker, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On March 12, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline J (Criminal Conduct) and Guideline H (Drug Involvement) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 25, 2009, after the hearing, Administrative Judge Juan J. Rivera denied Applicant’s request for a security clearance. Applicant The Judge’s finding in Applicant’s favor under SOR allegation 1.bis not at issue in this appeal. appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge made harmful errors in his findings of fact; whether the Judge erred in his application of the Guidelines H and J mitigating conditions; and whether the Judge erred in his whole person analysis. Finding no harmful error, we affirm. The Judge made the following pertinent findings of fact: Applicant used methamphetamine ten times between May 2005 and January 2007. His use was knowing and deliberate. In 2007 he mailed $200 to his brother in another state and asked him to mail Applicant some methamphetamine. His brother mailed him 1.9 grams of methamphetamine. The shipment was discovered by law enforcement personnel. Applicant was charged with a felony. Later that year he pled guilty to an amended charge of illegal possession methamphetamine. He was sentenced to 24 months probation with deferred judgment (in part). Applicant’s wife discouraged his use of methamphetamine but he disregarded her advice because he believed he did not have a drug problem, would not get addicted and would not get caught. On appeal, Applicant alleges errors in the Judge’s findings of fact. None of the alleged errors are outcome determinative. Therefore, none of them would be harmful even if the Board agreed with Applicant’s assertions. The Judge’s discussion of the mitigating conditions and the whole person concept reflect a reasonable analysis of the sustainable findings of security concern and the Board sees no reason to disturb them. 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 the national interest to grant or continue eligibility for a security clearance for Applicant” is sustainable on this record. Decision at 12. “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 decision denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board