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ISCR Case 10-02330.a1 — CASE

ISCR Case 10-02330.a1denied

Case Headnote

ISCR Case No. 10-02330.a1

Nov 25, 2011· Hon. Jean E. Smallin· appeal

Summary

A security clearance was denied for an applicant, a former military technician and single mother, based on concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The applicant admitted to using marijuana over several years, which was considered more than experimental use.

During the clearance process, the applicant willfully falsified information on her security clearance application. She failed to provide credible explanations for these omissions and did not meet her burden of persuasion for mitigation.

Ultimately, the Adjudicative Guidelines paragraphs 25 and 15 were raised as disqualifying conditions. The decision concluded that the applicant failed to demonstrate rehabilitation or present sufficient mitigating factors, leading to the denial of her security clearance.

Conditions Referenced

Disqualifying

AG ¶ 25raisedDrug 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 issuedNov 22, 2010
Answer filed—Applicant represented herself pro se.
Hearing heldSep 9, 2011Decision made on the written record.
Decision dateNov 25, 2011

Cite For

Willful Falsifications Under Guideline E
Drug Involvement Over an Extended Period Under Guideline H
Burden of Persuasion for Mitigation in Security Clearance Cases

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 drug involvement and personal conduct. The applicant challenged the Judge's findings and conclusions, but the Board affirmed the decision, finding no harmful errors in the Judge's reasoning or conclusions.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoan Caton Anthony — denied the clearance

Decided onthe written record

Guidelines belowGuideline HGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge failed to consider evidence favorable to her.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.
Erroneous finding of fact — raised by the applicantRejected
Applicant challenged the Judge's findings that her falsifications were willful.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the Judge properly applied the relevant legal standards. The Board concluded that the Judge's decision was not arbitrary or capricious and that the applicant failed to meet her burden of persuasion regarding mitigation.

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

Jean E. Smallin
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 H; Guideline E DIGEST: Applicant’s admissions and the record evidence support the Judge’s material findings that the falsifiations were willful. Adverse decision affirmed. CASENO: 10-02330.a1 DATE: 11/25/2011 DATE: November 25, 2011 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-02330

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 November 22, 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 decision on the written record. On September 9, 2011, after considering the record, 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 the Judge’s findings of fact contained errors; whether the Judge failed to consider all of the record evidence; whether the Judge mis-weighed the evidence; and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge made the following pertinent findings of fact: Applicant is a senior field service technician for a Federal contractor. A divorced mother of one child, she served in the U.S. military from 2003 until 2008. From 2004 until 2005 she was stationed in an Asian country, and from 2007 to 2008 she was deployed overseas. In December 2005, Applicant was awarded a security clearance. During the investigation of her application for a clearance, she signed a sworn statement admitting marijuana use from November 2000 until February 2003. In February and March 2008, after returning from an overseas deployment, Applicant again used marijuana. Applicant’s current security clearance application (SCA), completed on September 9, 2009, inquired if she had used any illegal drug, to include marijuana during the previous seven years. She answered “no.” The SCA also inquired if she had ever used any illegal drug while holding a security clearance. She answered this question “no” as well. In November 2009, Applicant was interviewed by an investigator from the Office of Personnel Management (OPM). The investigator summarized her interview. He represented Applicant as stating that her use of marijuana in 2008 was her only use of that drug. She did not disclose her prior uses. In 2010, Applicant provided answers to DOHA interrogatories. She signed a sworn and notarized statement that she had experimented with marijuana twice before going to boot camp and that she had not used marijuana since November 2003. She did not list her use in 2008. In the Analysis, the Judge stated that Applicant’s drug use, having taken place over a period of years, went beyond mere experimentation. Under the circumstances of this case, the Judge concluded that insufficient time had elapsed since Applicant’s last use of marijuana to demonstrate that she will abstain in the future. Regarding her falsifications, the Judge noted that Applicant had admitted the allegations on the SOR and that she had provided no credible explanation for them. The Judge stated that Applicant had not provided a reply to the File of Relevant Material and that the record before the Judge was sparse. Accordingly, the Judge concluded that Applicant had failed to meet her burden of persuasion as to mitigation. Applicant challenges the Judge’s findings that her falsifications were willful. Her brief states that she “never deliberately failed to provide truthful responses to the questions.” However, as the Judge found, Applicant admitted these allegations in her response to the SOR.1 Therefore, the deliberate nature of her omissions was not controverted. See, e.g., ISCR Case No. 08-06997 at 3 (App. Bd. Mar. 1, 2011). The Judge properly examined these omissions in the context of Applicant’s burden of persuasion as to mitigation. Applicant’s admissions, and the record evidence, support the Judge’s material findings of security concern. Applicant draws attention to evidence of her military service overseas. She states that her conduct has been exemplary, except for the use of marijuana in 2008. To the extent that she is contending that the Judge failed to consider evidence favorable to her, a Judge is presumed to have considered all of the evidence in the record. See, e.g., ISCR Case No. 04-12742 at 3 (App. Bd. Feb. 25, 2011). In this case, the Judge discussed Applicant’s military service. Moreover, while there is no evidence of adverse action against Applicant, either in the military or during subsequent civilian employment, neither is there record evidence of any accolades, awards, or favorable performance evaluations, etc. The Judge plausibly explained why she concluded that Applicant had failed to meet her burden of persuasion, principally the paucity of evidence in mitigation or extenuation, as well as Applicant’s deliberate failures to provide truthful answers on her SCA and during the ensuing investigation. Applicant has not rebutted the presumption that the Judge considered all of the evidence. Applicant contends that the Judge did not properly characterize evidence concerning her use of marijuana. Specifically, she argues that her use was infrequent. However, the Judge’s conclusion that Applicant’s use of marijuana “occurred periodically” over eight years is a reasonable interpretation of the evidence. The only reference in the Decision to frequency of use was in the Judge’s quotation of the SOR allegation itself, which Applicant had admitted.2 Applicant has not demonstrated that the Judge mis-weighed the evidence. 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: Jean E. Smallin Jean E. Smallin Administrative Judge Member, 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

FOOTNOTES

1 Applicant admitted the Guideline H allegations as well.

2 “The SOR alleges at ¶ 1(a) that Applicant used marijuana, with varying frequency, from November 2000 to March 2008.” Decision at 3.