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ISCR Case 10-02011.a1 — CASE

ISCR Case 10-02011.a1denied

Case Headnote

ISCR Case No. 10-02011.a1

May 10, 2011· Hon. Michael Y. Ra'anan· appeal

Summary

A government contractor with a bachelor's degree was denied a security clearance under Guideline E (Personal Conduct) due to intentional misrepresentation of his drug use history. The applicant claimed he did not deliberately falsify information; however, the judges found substantial evidence, including his own admissions, that he intended to mislead investigators.

The denial was based on the applicant's lack of honesty in his security clearance applications. Specifically, the applicant intentionally misled investigators regarding the extent of his drug use, and substantial evidence supported the conclusion that he provided false information on these applications.

The appeal board affirmed the denial, citing the applicant's intentional misrepresentation as the basis for upholding the decision.

Conditions Referenced

Disqualifying

E2raisedPersonal ConductThe applicant's intentional misrepresentation of drug use.

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 issuedSep 17, 2010
Answer filed—Pro se representation
Hearing heldFeb 28, 2011
Decision dateMay 10, 2011

Cite For

Intentional Misrepresentation of Drug Use Under Guideline E
Substantial Evidence Standard in Security Clearance Cases
Importance of Honesty in Security Clearance Applications

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 based on concerns under Guideline E regarding personal conduct. The applicant argued that the Judge's findings were not supported by substantial evidence and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding that the findings were supported by substantial evidence and that any errors were harmless.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoan Caton Anthony — denied the clearance

Decided ona hearing

Guidelines belowGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge's findings were not supported by substantial evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse decision was arbitrary, capricious, or contrary to law.
Erroneous finding of fact — raised by the applicantRejected
Applicant challenged the Judge's conclusion that he had deliberately provided false answers during previous security clearance processing.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge's findings of fact were based on substantial evidence and that the adverse decision was sustainable on the record. The Board also noted that any potential error in the Judge's findings was harmless as the material findings supported the adverse decision.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decision

Appeal Board panel

Michael Y. Ra’anan — Chair
William S. Fields
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 E DIGEST: Clearance Decision Statement from other government agency supports Judge’s finding that Applicant intended to mislead investigators as to the extent of his drug use. Judge’s findings of fact were based upon substantial record evidence. Adverse decision affirmed. CASE NO: 10-02011.a1 DATE: 05/10/2011 DATE: May 10, 2011 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-02011

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 September 17, 2010, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 28, 2011, after the hearing, Administrative Judge Joan Caton Anthony 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 some of the Judge’s findings were supported by substantial evidence; whether the Judge erred in concluding that he had deliberately provided false answers during previous security clearance processing; and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. Consistent with the following discussion, we affirm the decision of the Judge. The Judge made the following pertinent findings of fact: Applicant is employed by a Government contractor as a lead subcontracts representative. He holds a bachelor’s degree and has worked for his current employer since February 2009. Applicant began using marijuana in September 1998, when he was a freshman in college. He continued using marijuana throughout his college career while socializing with friends. About 30% of the time, Applicant purchased the marijuana that he and his friends used. Once, in March or April 2003, Applicant was on a trip for spring break. He smoked marijuana several times with friends during this trip. Also, he ate a brownie containing marijuana or some other drug, which caused him to hallucinate and lose control of his body. After recovering, he decided never to use illegal drugs again. In April 2004, Applicant completed a security clearance application (SCA). His security officer told him that the Government agency through which he was seeking the clearance did not want applicants who had been involved with illegal drugs within two years of applying. The SCA asked about any illegal drug use by Applicant. He stated that he had used marijuana once, in September 1998, and that he had not used it again. In August 2004, Applicant was interviewed by an investigator from another Government agency pursuant to his request for a clearance. He stated that he had used marijuana once per month between September 1998 and December 1999 and ate a brownie spiked with marijuana in March 2003. He told the investigator that he had not provided the full extent of his marijuana use because he was afraid that if he told the truth he might not be hired by his employer. He admitted that he had intended to mislead the Government concerning his involvement with drugs. In April 2009 Applicant completed another SCA. In response to a question about the extent of any illegal drug use, he stated that he had used marijuana from September 1998 to April 2003. He estimated that he had used marijuana “about 1 time every 4-5 months” during college and that he “socially smoked at college parties every now and then.” Decision at 4. Applicant has a good reputation for the quality of his job performance, dependability, and character. Applicant contends that he did not deliberately falsify his 2004 SCA. He challenges the Judge’s conclusions to the effect that he had attempted to mislead the Government concerning the extent of his drug use. In formulating her findings and conclusions, the Judge relied in part on the Clearance Decision Statement from the other Government agency, included in Government Exhibit 2, Answers to Interrogatories. This document explained to Applicant the reasons that the agency denied him a clearance. Among other things, this document described Applicant’s statements to the security clearance interviewer in August 2004. The Judge stated that she considered this document

FOOTNOTES

1 “[W]hen I filled out that information I had no idea about, my security officer told me there was a two-year buffer zone for the agency. You know, they didn’t want you to be involved in drugs for two years between when you applied and when you last did drugs. Now, you know, I didn’t know that information, but it wasn’t –there was no benefit in my eyes for me to say 2003 versus ‘98 versus ‘85 versus this morning, in my eyes.” Tr. at 53-54. to be an official record compiled in the regular course of business. Decision at 2, note 1. See Directive ¶ E3.1.20. See also ISCR Case No. 08-06997 at 3 (App. Bd. Mar. 1, 2011). This Clearance Decision Statement, along with the other evidence in the record, supports the Judge’s conclusions that Applicant had deliberately understated the extent of his drug use, in an attempt to mislead the Government. Applicant challenges certain of the Judge’s findings of fact, for example that he had told the other agency that he had feared not being hired if he had admitted the true extent of his illegal drug use. He also challenges the Judge’s finding that, at the time he completed his 2004 SCA, he was aware that the other agency did not want an applicant who had used illegal drugs within two years. On this latter point, the evidence, which consists of Applicant’s hearing testimony, is somewhat ambiguous.1 However, the Judge’s finding is a reasonable interpretation of the evidence and is sustainable. Even if we were to conclude that the Judge erred in this finding, the error would be harmless. The Judge’s material findings of security concern are based upon substantial record evidence. See Directive ¶ E3.1.32.1. (Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.”) 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.’” 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board