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ISCR Case 10-09119.a1 — CASE

ISCR Case 10-09119.a1denied

Case Headnote

ISCR Case No. 10-09119.a1

Jan 23, 2012· Hon. Jeffrey D. Billett· appeal

Summary

A pro se applicant with a Master's degree was denied a security clearance primarily due to concerns under Guideline H (Drug Involvement). The applicant had a history of using both marijuana and Ecstasy, which triggered disqualifying condition H.1.

While the judge made favorable findings for the applicant under Guideline E (Personal Conduct), applying mitigating condition E.2, this was ultimately insufficient to resolve the overarching security concerns. The mitigating evidence presented did not adequately address the government's concerns regarding the applicant's past drug involvement.

Consequently, despite the positive findings under Guideline E, the security clearance was denied based on the unresolved issues under Guideline H.

Conditions Referenced

Disqualifying

H.1raisedDrug Involvement

Mitigating

E.2appliedHonesty and Candor

Key Rule Quoted

“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 5, 2011
Answer filed—
Hearing heldNov 10, 2011
Decision dateJan 23, 2012

Cite For

Insufficient Mitigating Evidence Under Guideline H
Weighing of Evidence in Security Clearance Decisions
Burden of Proof Shifts to Applicant After Government Raises Security Concerns

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 argued that she was not adequately notified of the security concerns and that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding that the applicant had sufficient notice and that the Judge's conclusions were reasonable and supported by the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJuan J. Rivera — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline HGuideline E

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant argued that she was not given adequate notice of the issues of security concern.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse clearance decision is arbitrary, capricious or contrary to law.

Why the Board ruled this way

The Board concluded 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. The Judge's unfavorable security clearance decision was sustainable based on the evidence presented.

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

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
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: Although the Judge found for Applicant under Guideline E, he reasonably explained why the mitigating evidence was insufficient to overcome the security concerns under Guideline H. Adverse decision affirmed. CASENO: 10-09119.a1 DATE: 01/23/2012 DATE: January 23, 2012 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-09119

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Julie R. Mendez, Esq., Department Counsel FOR APPLICANT Pro se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On July 5, 2011, 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 November 10, 2011, after the hearing, Administrative Judge Juan J. Rivera denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether she was given adequate notice of the issues of security concern and whether the Judge’s adverse clearance decision is arbitrary, capricious or contrary to law. Applicant argues that she was not given adequate notice of the issues of security concern to the government. Her SOR originally included six allegations under Guideline E. Three of those allegations were removed at the beginning of the hearing on a motion by the Department Counsel. Applicant argues that the original presence of the additional allegations caused her to believe that the focus of the government’s concern was Guideline E. Applicant’s argument is not persuasive. The SOR included three separate allegations under Guideline H (Drug Involvement). Applicant’s security clearance application shows that she has a Master’s degree from a well known university. She was on adequate notice that the government’s concerns included her drug history. Applicant seeks reversal of the Judge’s adverse decision arguing that the evidence demonstrates that Applicant has mitigated the security concerns raised by her drug involvement. Applicant’s presentation does not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. 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. 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. 10-00278 at 2 (App. Bd. Mar. 18, 2011). In this case, the Judge made sustainable findings—consistent with Applicant’s own admissions—that Applicant had used marijuana from approximately 2000 to at least 2004, and used marijuana and Ecstasy at a concert in 2008. The concert took place after she had obtained a security clearance. In her brief, Applicant acknowledges that she “. . . understands that drugs are illegal and can certainly see why the government would not want to grant a clearance to someone who actively uses drugs . . .” but did not realize that one additional offense would cause her clearance to be revoked. Applicant’s Brief at 2. She also believes that the Judge’s favorable analysis under Guideline E undermines his adverse conclusions under Guideline H. Essentially, she argues that he repeatedly concluded that she is honest and that such conclusions are not consistent with his conclusion that she might use drugs again. A review of the decision indicates that the Judge weighed the testimony and evidence offered by Applicant and considered the possible application of relevant conditions and factors. Although the Judge found in favor of Applicant with respect to the Guideline E allegations, he reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns under Guideline H. Decision at 5-7. The Board does not review a case de novo. After reviewing the record, the Board concludes 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 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 unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board