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ISCR Case 10-01168.a1 — CASE

ISCR Case 10-01168.a1denied

Case Headnote

ISCR Case No. 10-01168.a1

Apr 22, 2011· Hon. Michael Y. Ra'anan· appeal

Summary

A 26-year-old defense contractor and college graduate was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The denial stemmed from the applicant's history of marijuana use and a failure to disclose a 2009 arrest on his security clearance application.

The applicant's credibility was significantly undermined by the undisclosed arrest and other inaccuracies in his application. These issues raised disqualifying conditions under Adjudicative Guidelines Paragraphs 15 and 24.

Ultimately, the appeal board affirmed the denial, finding no error in the judge's application of mitigating conditions or the whole-person analysis. The board concluded that the applicant's drug involvement and personal conduct issues, particularly the lack of candor, presented unacceptable security risks.

Conditions Referenced

Disqualifying

AG ¶ 24raisedDrug Involvement
AG ¶ 15raisedPersonal 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 issuedAug 17, 2010
Answer filed—
Hearing heldFeb 7, 2011
Decision dateApr 22, 2011

Cite For

Adverse Credibility Determinations Related to Drug Involvement Under Guideline H
Failure to Disclose Arrests as a Significant Factor in Security Clearance Decisions
Insufficient Mitigating Evidence in Cases of Personal Conduct Violations Under Guideline E

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 was denied due to concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The applicant raised several issues on appeal regarding the Judge's credibility determination and evidence weighing. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMarc E. Curry — denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline E

What the Board reviewed

Credibility determination — raised by the applicantRejected
The Judge erred in his credibility determination.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge mis-weighed the record evidence or failed to consider all of the record evidence.
Mitigation wrongly applied / not applied — raised by the applicantRejected
The Judge erred in his application of the mitigating conditions.
Whole-person analysis — raised by the applicantRejected
The Judge’s whole-person analysis was erroneous.

Why the Board ruled this way

The Board found no reason to disturb the Judge’s adverse credibility determination and affirmed the decision based on the record as a whole.

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
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 H; Guideline E DIGEST: Reading the Judge’s decision in light of the record as a whole, the Board finds no reason to disturb the Judge’s adverse credibility determination. Adverse decision affirmed. CASENO: 10-01168.a1 DATE: 04/22/2011 DATE: April 22, 2011 In Re: -------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-01168

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 August 17, 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 February 7, 2011, after the hearing, Administrative Judge Marc E. Curry 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 his credibility determination; whether the Judge mis-weighed the record evidence or failed to consider all of the record evidence; whether the Judge erred in his application of the mitigating conditions; and whether the Judge’s whole-person analysis was erroneous. Consistent with the following discussion, we affirm the decision of the Judge. The Judge made the following pertinent findings of fact: Applicant is a 26-year-old employee for a Defense contractor. A college graduate, he majored in electrical engineering and electronics technology. Beginning in 2004, Applicant used marijuana approximately twice a week. He did so in order to self-medicate chronic anxiety and a consequent speech impediment. He began treatment by a physician in 2009, realizing that marijuana use was not a healthy way to deal with his problems. In June 2006, he was arrested and charged with possession of marijuana. The charges were dropped after Applicant completed a drug diversion program. In June 2007, he was cited for possession of marijuana and drug paraphernalia. The court deferred prosecution for one year, conditioned on Applicant not committing additional offenses. At the end of the year, the charges were dropped. In October 2009, the police stopped him and noticed an open container of alcohol. On reaching for the container, the policeman discovered marijuana seeds on the floor of the car. Applicant was arrested for violation of the open container law and for possession of marijuana. The charge was later dismissed.1 In completing his security clearance application (SCA), Applicant was required to (1) list any arrests by any police officer, sheriff, marshal, or other law enforcement officer; (2) list any charges involving alcohol or drugs; and (3) describe the extent of his illegal drug use, if any. For the first two questions, Applicant neglected to list the 2009 incident. For the third he stated that he had used marijuana only between May and June of 2005. Applicant contends that the Judge failed to consider record evidence favorable to him, for example his testimony as to why he failed to list the 2009 arrest and why he came to provide inaccurate dates for his marijuana use. However, a Judge is presumed to have considered all of the evidence in the record. See, e.g., ISCR Case No. 09-01735 at 2 (App. Bd. Aug. 31, 2010). Applicant’s presentation on appeal is not sufficient to rebut this presumption. Neither is it sufficient to demonstrate that the Judge weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. In the Analysis portion of the decision, the Judge had stated that Applicant’s credibility as to when Applicant stopped using marijuana was undermined by his falsification of the SCA. Decision at 5. Applicant challenged this conclusion, arguing that his falsification of the dates during which he used marijuana was clearly a mere error rather than an intentional falsification. However, reading the Judge’s decision in light of the record as a whole, we find no reason to disturb his credibility determination. See, e.g., ISCR Case No. 09-00395 at 3 (App. Bd. Jun. 8, 2010). 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,’” both as to the mitigating conditions and the whole-person factors. 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). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor 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 Chairperson, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board

FOOTNOTES

1 Applicant Exhibit B, Court Document, states that the prosecuting attorney declined to file charges because Applicant had already served one day in jail following his citation on this offense and would not face more time upon conviction.