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ISCR Case 11-09876.a1 — CASE

ISCR Case 11-09876.a1denied

Case Headnote

ISCR Case No. 11-09876.a1

Sep 6, 2013· Hon. Jeffrey D. Billett· appeal

Summary

A federal contractor employee was denied a security clearance under Guideline H (Drug Involvement) and Guideline J (Criminal Conduct). The denial stemmed from a significant history of daily marijuana use spanning nearly a decade, which the applicant stated ceased in 2009.

Further contributing to the denial was a criminal conviction for unlawful possession of a firearm, which resulted in incarceration and probation. The judge determined that the applicant's cumulative conduct, specifically the drug abuse and criminal conviction, raised substantial concerns regarding his judgment and trustworthiness.

Despite the applicant's claims of intent to abstain from drug use, the judge found insufficient evidence of rehabilitation or mitigation to overcome the disqualifying conditions. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 25raisedCriminal Conduct
AG ¶ 24raisedDrug 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 issuedJan 15, 2013
Answer filed—
Hearing heldMay 31, 2013
Decision dateSep 6, 2013

Cite For

Denial Based on Cumulative Conduct Under Guideline H and J
Insufficient Evidence of Rehabilitation After Drug Abuse and Criminal Conduct
Due Process Considerations in Pro Se Representation 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 concerns under Guideline H (Drug Involvement) and Guideline J (Criminal Conduct). The applicant argued that he was denied due process and that the Judge's decision was arbitrary. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMichael H. Leonard — denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline J

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant contended that he was denied due process and that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the applicant was not denied due process. The applicant's arguments did not demonstrate harmful error.

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
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 J DIGEST: Applicant cited to no evidence that he would have submitted had he been represented by counsel. Applicant was not denied the due process afforded by the Directive. Applicant cites to evidence that his security-significant conduct ended in 2009. The Judge acknowledged the lapse of time. However, Applicant’s conduct, viewed cumulatively, and taking into account a weapons conviction, supports the Judge’s adverse conclusion. Adverse decision affirmed. CASE NO: 11-09876.a1 DATE: 09/06/2013 DATE: September 6, 2013 In Re: --------------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-09876

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On January 15, 2013, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline H (Drug Involvement) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On May 31, 2013, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Michael H. Leonard 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 Applicant was denied due process and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant is an employee of a Federal contractor. He began working for his current employer in 2010, submitting his application for a security clearance in December of that year. Applicant has a history of drug abuse and criminal conduct. He used marijuana multiple times daily from January 2000 through September 2009. He tested positive for marijuana on a random drug test, resulting in his being fired from his job. In 2007, he was cited by a sheriff for marijuana possession. He appeared in court and the charge was dismissed. In 2009, Applicant was stopped by the highway patrol. The officer confiscated a handgun. Applicant pled no contest to a misdemeanor charge of unlawful carrying and possession of a loaded firearm in a public place. The court sentenced Applicant to 48 hours confinement and three years of probation. He completed the probation in September 2012. At the hearing, Applicant stated that he was no longer a misguided youth and that he intends not to use drugs again. He signed a statement of intent with automatic revocation of clearance for any subsequent violation. The Judge’s Analysis The Judge concluded that Applicant’s circumstances raised concerns under both Guidelines alleged in the SOR. He also concluded that Applicant had failed to mitigate these concerns. He noted favorable evidence, such as Applicant’s statement of intent and that he disclosed his drug use in completing his clearance application. However, the Judge stated that Applicant’s history of security-significant conduct included daily drug use for nearly a decade and a conviction for a firearm offense that resulted in his being incarcerated. The Judge stated that Applicant’s conduct raises serious doubt about his judgment, reliability, and trustworthiness.

DISCUSSION

Applicant contends that the result of his case might have been different if he had been represented by counsel. DOHA gave Applicant pre-hearing guidance that advised him of his right to counsel, his right to submit evidence, etc. At the beginning of the hearing, the Judge queried Applicant about his capacity to represent himself, concluding that Applicant was able to do so. Tr. at 10-12. In addition, Department Counsel provided Applicant with some assistance in preparing a document for submission into evidence. Tr. at 33-34. Applicant has cited to no evidence that he would have submitted had he been represented by counsel. We conclude that Applicant was not denied the due process afforded by the Directive. See, e.g., ISCR Case No. 08-07352 at 2 (App. Bd. Jul. 28, 2009). Applicant cites to evidence that his security-significant conduct ended in September 2009. He argues that enough time has elapsed so as to demonstrate that he has rehabilitated himself. The Judge acknowledged the lapse of time, as well as other evidence favorable to Applicant. However, Applicant’s conduct, viewed cumulatively and taking into account his weapons conviction, supports the Judge’s adverse conclusion. Applicant has advanced an alternative interpretation of the evidence, but that is not sufficient to demonstrate that the Judge mis-weighed the evidence or reached an erroneous conclusion regarding the ultimate issue in the case. See, e.g., ISCR Case No. 08-08944 at 2 (App. Bd. Nov. 3, 2009). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The 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 Decision is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett 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