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ISCR Case 09-01515.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date9/15/2010
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 09-01515.h1) →
Participants
Judge: Jeffrey D. Billett, Michael Y. Ra'anan, James E. Moody
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline HDrug Involvement & Substance Misuse · Against Applicant
- Guideline JCriminal Conduct · Against Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
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ISCR Case 09-01515.a1denied

Case Headnote

ISCR Case No. 09-01515.a1

Sep 15, 2010· Hon. Jeffrey D. Billett· appeal

Summary

A 20-year-old male applicant was denied a security clearance under Guidelines E (Personal Conduct), H (Drug Involvement), and J (Criminal Conduct). The denial stemmed from a pattern of driving infractions, illegal drug use, and criminal behavior, which raised significant security concerns.

Specifically, the applicant's history of driving infractions was cited as evidence of poor judgment. His engagement in illegal drug use and criminal conduct were also deemed serious issues. These actions collectively led the judge to conclude that the applicant demonstrated unreliability and a lack of sound judgment.

The applicant failed to provide sufficient mitigating evidence to address the government's concerns regarding his conduct. Consequently, the judge determined that the disqualifying conditions, including those related to personal conduct, drug involvement, and criminal conduct, were not overcome, resulting in the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 15raisedCriminal Conduct
AG ¶ 24raisedDrug Involvement
AG ¶ 14raisedPersonal Conduct

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 issuedNov 23, 2009
Answer filed—
Hearing heldJun 21, 2010
Decision dateSep 15, 2010

Cite For

Denial Based on Poor Judgment Under Guideline E
Impact of Illegal Drug Use Under Guideline H
Criminal Conduct as a Disqualifying Factor Under Guideline J

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 who was denied a security clearance based on concerns under Guidelines E, H, and J. The applicant argued that the Judge mis-weighed evidence and that the decision was arbitrary. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationAttorney

Judge belowDarlene D. Lokey Anderson — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline HGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge mis-weighed the record evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's decision was arbitrary and capricious.

Why the Board ruled this way

The Board found that the Judge did not err in weighing the evidence and that the unfavorable decision was supported by substantial evidence. The Board concluded that the Judge's decision was not arbitrary or capricious and that the applicant did not provide sufficient evidence to mitigate the government's security concerns.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Jeffrey D. Billett
James E. Moody
Michael Y. Ra’anan — Chair
Included a dissent

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 H; Guideline J DIGEST: Applicant’s argument on appeal did not establish that the Judge mis-weighed the record evidence. The Government does not have to demonstrate that Applicant’s access to classified information would pose an imminent threat to national security before denying a clearance. Adverse decision affirmed. CASE NO: 09-01515.a1 DATE: 09/15/2010 DATE: September 15, 2010 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-01515

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Edward O. Lear, Esq.and Daniel Woodford, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On November 23, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline E (Personal Conduct), 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 June 21, 2010, after the hearing, Administrative Judge Darlene D. Lokey Anderson denied Applicant’s

FOOTNOTES

1 Applicant proffers an additional argument by asserting that there is no reasonable basis for concluding that allowing Applicant’s access to classified information poses an imminent threat to the national interest. He cites the Directive ¶ 6.4, for the proposition that clearance suspension is authorized where an imminent threat to the national interest is established. Applicant’s argument is misplaced. Clearance suspension pending the normal security clearance adjudication process is a separate determination that is not applicable to this case. Thus, the standard of imminent threat 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 erred in concluding that Applicant failed to present sufficient evidence to overcome the government’s security concerns, and whether the Judge misapplied the whole person factors. For the following reasons, the Board affirms the Judge’s unfavorable decision. The Judge made the following findings: Applicant is 20 years old. He has been cited for three driving infractions. In December 2007, at the age of 17, he was cited for driving past curfew. In February 2008, he was cited for unsafe turn signal, obstructed view and not having a driver’s license in his possession. In May 2008, Applicant was cited for speeding. Applicant used marijuana two or three times between December 2007 and January 2008. He also used cocaine and ecstasy on one occasion in January 2008. He tested positive for illegal drugs during a drug screening test conducted by his probation office in January 2008. Applicant attributed his illegal drug use to peer pressure. He no longer associates with any drug users. In August 2005, Applicant was arrested for grand theft from person. Applicant was accused of taking a $5 bill off of a person standing in line in front of him at a store. He was arrested and taken to jail. He was issued a citation and required to appear in court. Unintentionally, he missed his court date and a warrant was issued for his arrest. The court ultimately dismissed the case. In September 2007, Applicant was arrested and charged with felony burglary. Applicant stole a bottle of alcohol (liquor) from a department store with a friend, who stole additional items. Applicant was arrested and taken to jail. He was placed on supervised probation for one year, required to complete of 80 hours of community service and 20 hours of either AA or NA meetings. Applicant testified that he currently has a girlfriend, who has kept him on the straight and narrow path for the past two years. He feels that she has brought out the best in him and he is a completely changed person. He recently purchased a house. Applicant currently consumes alcohol, and is currently breaking the law. He knows that it is illegal for him to consume alcohol in the state, as he is under the legal age limit to consume alcoholic beverages. The Judge concluded that the totality of the evidence indicates poor judgment, unreliability, and untrustworthiness on the part of the Applicant. Furthermore, although it is not alleged, Applicant is consuming alcohol while he is still under the legal age to do so in the state of his residence. Applicant has not introduced persuasive evidence in rebuttal, explanation or mitigation that is sufficient to overcome the government’s case. Under the whole-person concept, the totality of the conduct set forth under all the guidelines indicates that Applicant may not properly safeguard classified information. Applicant contends that the Judge’s unfavorable decision is not supported by the record evidence and that Applicant established mitigation of the government’s concerns1. He states that is not applicable to this case.

2 Included with Applicant’s appeal brief was a Motion to Augment Record, wherein Applicant requested the Board to consider evidence relating to his psychiatric treatment. In keeping with the Directive’s prohibition against considering matters not part of the record, the motion is denied. the conduct that the Judge cited as a basis for her decision can be attributed to his young age and inexperience. He states his unwillingness to jeopardize his current position, his disassociation from the harmful influences that contributed to his past indiscretions, and the positive influences represented by his girlfriend, his job and his new home. Applicant’s arguments do not establish error on the part of the Judge. Applicant cites his commitment to weekly psychiatric treatment as an additional factor which renders the Judge’s clearance decision arbitrary and capricious. The evidence of psychiatric treatment is new evidence, which the Board cannot consider on appeal. Directive ¶ E3.1.29.2 As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. See, e.g., ISCR Case No. 06- 10320 at 2 (App. Bd. Nov. 7, 2007). 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). In this case, the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. She adequately discussed why the disqualifying conduct established under Guidelines E, H, and J was not mitigated. The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for her 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board SEPARATE OPINION OF ADMINISTRATIVE JUDGE MICHAEL Y. RA’ANAN To the extent that Applicant’s brief raises the issue of whether the Judge adequately addressed questions of recency and maturity, I believe it raises a fair point. Two years have passed since the last misconduct alleged in the SOR (speeding five miles an hour over the speed limit) and Applicant is twenty-years-old. It would have been appropriate for the Judge to address in some detail the applicability of Directive, Enclosure 2 ¶¶ 2(a)(3), 2(a)(4), 2(a)(9), 2(e)(1), 2(e)(5), 17(c), 26(a), 26(b), 32(a) and/or 32(d) in her decision. Her failure to do so was error. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board