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ISCR 08-11944.al: Guideline E security clearance appeal, denied (2011) · CASE

ISCR Case 08-11944.aldenied

Case headnote

ISCR Case No. 08-11944.al

Aug 15, 2011· Hon. Jeffrey D. Billett· appeal

Summary

This security clearance application was denied for a 56-year-old male due to unmitigated concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). While the applicant had a history of alcohol and drug use, issues related to Guideline G (Alcohol Consumption) and Guideline H (Drug Involvement) were successfully mitigated.

The primary reason for denial stemmed from deliberate falsifications made by the applicant on his security clearance application. The judge identified a pattern of multiple falsifications, each independently holding security significance. These actions raised disqualifying conditions under AG ¶ 16 and AG ¶ 31.

Despite the mitigation of alcohol and drug use concerns through conditions such as AG ¶ 20 and AG ¶ 22, the judge concluded that the applicant failed to adequately address the serious issues of personal and criminal conduct. The deliberate nature and number of falsifications were deemed unmitigated, leading to the denial of the security clearance.

Conditions referenced

Disqualifying

AG ¶ 16raisedPersonal Conduct
AG ¶ 31raisedCriminal Conduct

Mitigating

AG ¶ 20appliedAlcohol Consumption
AG ¶ 22appliedDrug Involvement

Key rule quoted

“An act of falsification has security significance independent of any significance of the underlying conduct.”
ISCR Case No. 01-19278 at 7-8 (App. Bd. Apr. 22, 2003)

Procedural posture

SOR issuedAug 25, 2010
Answer filed—
Hearing heldMay 19, 2011
Decision dateAug 15, 2011

Cite for

Security Significance of Falsifications in Security Clearance Applications
Mitigation of Alcohol and Drug Use Does Not Excuse Personal Conduct Issues
Pattern of Multiple Falsifications Raises Serious Security Concerns

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 personal conduct, alcohol consumption, drug involvement, and criminal conduct. The applicant argued that the Judge's decision was inconsistent and arbitrary. The Board affirmed the Judge's decision, finding no harmful error and that the Judge's conclusions were supported by substantial evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowLeRoy F. Foreman denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline EGuideline GGuideline HGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argues that the Judge’s adverse security clearance decision is inconsistent with the Judge’s findings.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argues that the Judge’s decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's conclusions regarding the applicant's lack of candor and the security concerns raised were sustainable and articulated a satisfactory explanation for the 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
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 E; Guideline G; Guideline H; Guideline J DIGEST: Applicant has mitigated the security concerns based on alcohol consumption and drug involvement but has not mitigated security concerns based on personal conduct and criminal conduct. The Judge’s conclusion that Applicant’s lack of candor in completing his SCA raises security concerns that have not been mitigated is sustainable. Adverse decision affirmed. CASENO: 08-11944.al DATE: 08/15/2011 DATE: August 15, 2011 In Re: -------------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-11944

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Francis J. Flanagan, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 25, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On May 19, 2011, after the hearing, Administrative Judge LeRoy F. Foreman denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issues on appeal: whether the Judge’s adverse security clearance decision is inconsistent with the Judge’s findings, and whether the Judge’s decision is arbitrary, capricious, or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable decision. The Judge made the following pertinent findings of fact: Applicant is 56 years old. He has held a security clearance since 1998. Applicant began consuming alcohol in high school. While in the Navy, he consumed two to four beers every day after working hours, and after his discharge he sometimes consumed more than six beers at a sitting. In the late 1990she increased his beer consumption because of his marital problems, occasionally consuming eight or nine beers in an evening. He began purchasing and using marijuana in the 1970s, using it five or six times a year. He stopped using marijuana during the late 1980s, but resumed use in the 1990s, when he purchased it four to six times a year and used it once or twice a month. He stopped purchasing and using marijuana and drinking alcohol after he was seriously injured in a motorcycle accident in 2009. Applicant was involved in alcohol-related driving incidents in 1977, 1995, 2004, 2007, and culminating in the 2009 accident where he was intoxicated and riding his motorcycle. Additionally, in 2006, Applicant was charged with possession of marijuana and driving with a suspended or revoked license. In October 2009, Applicant was stopped for having an expired inspection sticker and arrested for driving on a suspended license. Applicant began court-ordered outpatient treatment in December 2009. He was discharged from the program in February 2010. The diagnostic summary comments favorably on his progress but does not include a prognosis. Applicant received counseling from a psychologist for about six weeks before the hearing. Applicant submitted a security clearance application in May 2008. When asked if he had ever been charged with or convicted of any offenses related to alcohol or drugs, he did not disclose his DUI arrests in 1977 and 1995 or his arrest for possession of marijuana in 2006. On the same application he also did not disclose his marijuana use. At the hearing, he admitted that he intentionally falsified his answer to this question because he was concerned that it would harm his career if he admitted his marijuana use. In an interview with a security investigator in April 2010, Appellant admitted that he deliberately lied during prior interviews about his marijuana use and the amount of his alcohol consumption. The Judge reached the following conclusions: Applicant mitigated the security concerns under the Alcohol Consumption and the Drug Involvement Guidelines. Under the Personal Conduct Guideline, Applicant failed to mitigate numerous instances of deliberate falsification of his past alcohol, drug, and arrest history during official government inquiries. Likewise, Applicant was unable to mitigate the government’s security concerns under the Criminal Conduct Guideline relating to his falsifications. Applicant argues that the Judge’s ultimate decision is inconsistent with his findings. He states that, although the Judge concluded that he had mitigated the security concerns based upon alcohol consumption and drug involvement, unfortunately the Judge found that he had not mitigated the security concerns based upon personal conduct and criminal conduct. Applicant asserts that his alcohol consumption and drug involvement was the source of his personal conduct and criminal conduct. He argues that a finding of mitigation for alcohol consumption and drug involvement should likewise mitigate further concerns about his behavior rising from said previous activities. Applicant also maintains that he is not vulnerable to coercion, exploitation, or duress. Applicant’s assertions do not establish error on the part of the Judge. Applicant stresses the mitigating evidence relating to his alcohol and drug use, and focuses on the underlying conduct when arguing that the Judge’s adverse decision concerning his numerous falsifications should be reversed. Applicant appears to argue that the security significance of the falsifications derives from the security significance of the events that were the subject of the falsifications. This argument lacks merit. An act of falsification has security significance independent of any significance of the underlying conduct. See, e.g., ISCR Case No. 01-19278 at 7-8 (App. Bd. Apr. 22, 2003). The mitigation of the underlying conduct has little bearing on the security significance of the falsification, particularly in a case like this one, involving a pattern of multiple falsifications. Additionally, in the context of this case, Applicant’s assertion that the record evidence establishes that he is not subject to coercion, exploitation, or duress does not establish error. 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 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). Therefore, the Judge’s ultimate unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Jeffrey D. Billett

Jeffrey D. Billett Administrative Judge Member, 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