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ISCR 10-01355.a1: Guideline F security clearance appeal, denied (2011) · CASE

ISCR Case 10-01355.a1denied

Case headnote

ISCR Case No. 10-01355.a1

Aug 24, 2011· Hon. Jeffrey D. Billett· appeal

Summary

The applicant, a laboratory optical microscopist, was denied a security clearance due to concerns under Guideline F (Financial Considerations) and Guideline H (Drug Involvement). The judge determined that the applicant did not adequately mitigate issues related to his past marijuana use and financial stability.

Specific disqualifying conditions were raised, and the denial was based on several factors. The applicant's recent marijuana use occurred within a family context, which raised concerns about his environment. Furthermore, the applicant's credibility was undermined by inconsistent statements he made regarding his marijuana use.

Ultimately, the judge found that the applicant failed to successfully rebut the presumption that all relevant evidence had been considered. This led to the denial of the security clearance request.

Conditions referenced

Disqualifying

AG ¶ 19raisedFinancial Considerations
AG ¶ 25raisedDrug 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 issuedJul 19, 2010
Answer filed—
Hearing heldMay 23, 2011
Decision dateAug 24, 2011

Cite for

Denial of Clearance Due to Drug Involvement Under Guideline H
Failure to Mitigate Financial Considerations Under Guideline F
Importance of Credibility in Security Clearance Evaluations

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 financial considerations and drug involvement. The applicant argued that the Judge erred in applying mitigating conditions and in the whole-person analysis. The Board affirmed the Judge's decision, finding no harmful error in the Judge's reasoning or conclusions.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMarc E. Curry denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline H

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant contended that the Judge did not consider all of the record evidence, such as his years of abstinence and self-reporting of recent marijuana use.
Whole-person analysis, raised by the applicantRejected
Applicant argued that the Judge's whole-person analysis was erroneous.

Why the Board ruled this way

The Board affirmed the Judge's decision, finding that the Judge reasonably explained why the applicant failed to meet the burden of persuasion for mitigation and that the Judge's findings were supported by substantial evidence.

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

Jeffrey D. Billett
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 F; Guideline H DIGEST: Applicant failed to rebut the presumption that the Judge considered all of the record evidence. Hearing Office decisions are binding neither on the Appeal Board or on other Hearing Office Judges. Adverse decision affirmed. CASE NO: 10-01355.a1 DATE: 08/24/2011 DATE: August 24, 2011 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-01355

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Caroline A. Jeffreys, Esq., Department Counsel FOR APPLICANT John N. Griffith, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On July 19, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations) and Guideline H (Drug Involvement) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On May 23, 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’s application of the pertinent mitigating conditions was erroneous and whether the Judge’s whole-person analysis was

FOOTNOTES

1 There is some conflict in the evidence concerning the dates of Applicant’s uses of marijuana. However, the record contains substantial evidence that Applicant used marijuana on three occasions, in late 2007 and in late 2008. erroneous. Consistent with the following, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: Applicant works in a research laboratory as an optical microscopist. He has an associate’s degree. Divorced, he has three children. From 1987 to 1993, Applicant smoked marijuana approximately once every other week. In 1987, when he was 12 years old, Applicant was arrested and charged with possession of marijuana. In 1993, he was arrested and charged with possession of that drug, and, later that year, he was arrested and charged with planting and cultivating marijuana and with possession of a controlled substance. These two charges were subsequently dropped. After his last arrest in 1993, he stopped smoking marijuana because he had tired of doing so and was not pleased with some of the people he and family members associated with. He refrained from using marijuana until late 2007, at which time he shared a marijuana cigarette with his previously estranged brother as a “peace offering.” Decision at 3. Applicant was only vaguely concerned that marijuana use was illegal. In November 2008, he used marijuana on two occasions by eating brownies laced with the drug. His sister had prepared the brownies and dared him to eat them. He has not used marijuana since that time.1 In the Analysis, the Judge noted Applicant’s personal development over the years from high school dropout to molecular researcher. However, the Judge also noted that Applicant’s most recent uses of the drug occurred within his close family, calling “into question Applicant’s surrounding environment and [minimizing] the probative value of his reassurances that his marijuana use will not recur.” Decision at 6. Applicant contends that the Judge did not consider all of the record evidence, for example his years of abstinence and his having self-reported the recent uses. This was evidence the Judge was bound to consider, along with all of the other evidence in the record. However, the Judge reasonably explained why he concluded that Applicant had failed to meet his burden of persuasion as to mitigation. Applicant has not rebutted the presumption that the Judge considered all of the record evidence. Neither has he demonstrated that the Judge mis-weighed the evidence. See, e.g., ISCR Case No. 09-06691 at 3-4 (App. Bd. May 16, 2011). Applicant cites other cases, both by the Appeal Board and by the Hearing Office which, he argues, support his claim that the Judge erred. We give these cases due consideration. Hearing Office decisions are binding neither on other Hearing Office Judges nor on the Appeal Board. See, e.g., ISCR Case No. 10-02660 at 2 (App. Bd. Jun. 6, 2011). In any event, the cases which Applicant cites contain significant factual differences from his own. These cases do not demonstrate error by the Judge. 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

2 In her reply brief, Department Counsel cites to some inconsistent statements by Applicant. For example, he did not mention his two uses of marijuana with his sister when interviewed by a security clearance investigator. Applicant told the investigator that the incident with his brother had been a one-time event and that “there have been no further occurrences.” Government Exhibit 3 at 3. Subject signed a sworn statement to the effect that the interview summary was accurate and that he adopted it as his own. He also made inconsistent statements as to when in 2008 the uses of marijuana had occurred. and the choice made,’” both as to the mitigating conditions and the whole-person factors.2 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: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, 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