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ISCR 11-14265.a1: Guideline E security clearance hearing, denied (2013) · CASE

ISCR Case 11-14265.a1denied

Case headnote

ISCR Case No. 11-14265.a1

deniedAug 28, 2013· Hon. Jean E. Smallin· hearing

Summary

A government contractor with a General Discharge from military service was denied a security clearance due to concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The denial stemmed primarily from the applicant's inconsistent statements regarding past marijuana use, which were deemed to undermine his credibility.

Specifically, the judge found that the applicant provided deliberately false answers on his security clearance application. These contradictory statements were identified as disqualifying conditions H.1 and E.2.

The appeal board affirmed the denial, concluding that the applicant's lack of candor was a significant concern. The board determined that the favorable evidence presented by the applicant was insufficient to mitigate the serious concerns raised by his inconsistent and false statements.

Why the applicant was denied

The applicant's contradictory statements regarding drug use undermined his credibility.
The judge found that the applicant's answers to the security clearance application were deliberately false.
The favorable evidence presented was insufficient to mitigate the concerns raised.

Conditions referenced

Disqualifying

H.1raisedDrug Involvement
E.2raisedDeliberate Falsification

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 issuedMar 22, 2013
Answer filed—
Hearing heldJun 28, 2013
Decision dateAug 28, 2013

Cite for

Credibility Issues Related to Inconsistent Statements Under Guideline H
Deliberate Falsification of Information Under Guideline E
Importance of National Security in Clearance Determinations

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Held a clearance before: Yes: “He confirmed that he had used marijuana after having been granted a security clearance.”

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant's answers on the security clearance application were deliberately false, undermining his credibility. The applicant's claims of changed behavior and community involvement were not sufficient to mitigate the concerns raised by his conduct, leading to a denial of the security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation

Standardized Decision Profile

SEAD-4 Guideline H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant had used marijuana approximately ten times between 2001 and 2011, including after being granted a security clearance. The applicant's contradictory statements about his drug use undermined his credibility, leading to a denial of his security clearance. The judge concluded that the applicant's favorable evidence was insufficient to mitigate the concerns raised by his conduct.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation

Descriptive standardized rendering of a decided public case. The verbatim source decision is shown in full below.

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

HEARING

SYNOPSIS

KEYWORD: Guidline H; Guideline E DIGEST: In an analyzing an applicant’s mens rea, a Judge must consider the applicant’s answers in light of the entire record. Adverse decision affirmed. CASENO: 11-14265.a1 DATE: 08/28/2013 DATE: August 28, 2013 In Re: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-14265

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Alan V. Edmunds, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On March 22, 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 E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On June 28, 2013, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Juan J. Rivera denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: 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 The Judge made the following pertinent findings of fact: Applicant works for a Government contractor. He served in the U.S. military from 1992 to 1998, receiving a General Discharge. He has an associate’s degree. Applicant submitted a security clearance application (SCA) in 2007. In response to a question about his prior use of drugs, he stated that he had used marijuana about five times between October 2001 and September 2002. He submitted another SCA in 2011. In response to a similar question, he stated that he had used marijuana about ten times between October 2001 and March 2011. During a clearance interview, he advised that he had used marijuana once a year while on vacation to relax, for a total of about ten times. He used during a vacation to a foreign country in 2005. In his answer to the SOR and during the hearing, Applicant stated that he had used marijuana only four times. He confirmed that he had used marijuana after having been granted a security clearance. He stated that he was not aware that it was against policy to use marijuana while holding a clearance. Applicant claimed that the discrepancies in his answers about marijuana use were not due to an intent to deceive but to faulty memory. He states that he has matured and no longer associates with his drug-using friends. He is involved in community activities and has signed a statement of intent with automatic revocation of clearance for any further drug use. Applicant enjoys an excellent reputation for the quality of his work, his ethics, and his dedication. His job performance ratings have been exceptional. The Judge’s Analysis Regarding Guideline H, the Judge stated that Applicant’s contradictory statements undermined his credibility, thereby diminishing the impact of his testimony about changed behavior. Under Guideline E, the Judge found that Applicant’s answers to the 2007 SCA were deliberately false. He found that none of the mitigating conditions applied, for reasons similar to those advanced under Guideline H. In the whole-person analysis, the Judge noted evidence that Applicant had received a General Discharge.1 He also noted evidence of Applicant’s family circumstances, his education, his good job performance, and his community involvement. He went on to conclude that the favorable evidence Applicant submitted was not sufficient to mitigate the concerns raised by his conduct.

DISCUSSION

Applicant contends that the Judge erred in finding that he had deliberately falsified his SCA. He contends that the evidence supports his explanation that he was not certain about the number of times he had used marijuana. In analyzing an applicant’s mens rea, a Judge must consider the applicant’s answers in light of the entire record. See, e.g., ISCR Case No. 10-07104 at 3 (App. Bd. Feb. 25, 2013). The Judge’s finding about Applicant’s intent was consistent with the record that was before him. Applicant has cited to another Hearing Office case which, he contends, supports his case for a clearance. We have given due consideration to this case. However, it has significant differences from Applicant’s own. In any event, Hearing Office decisions are not binding on other Hearing Office Judges or on the Appeal Board. See, e.g., ISCR Case No. 11-07666 at 3 (App. Bd. Jun. 7, 2013). 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: 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 “Q: And you got an other than honorable discharge? A: A general under honorable conditions. Q: Okay. And what was the reason for that? A: I was late for mission a few times.” Tr. at 30.