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ISCR 14-00509.a1: Guideline E security clearance appeal (2015) · CASE

ISCR Case 14-00509.a1unknown

Case headnote

ISCR Case No. 14-00509.a1

Jan 13, 2015· Hon. Jeffrey D. Billett· appeal

Summary

This case involves an applicant, representing himself, whose security clearance was initially challenged under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The concerns under Guideline H stemmed from the applicant's use of marijuana while employed by a Defense contractor.

While the Guideline E (Personal Conduct) issues were resolved in the applicant's favor, the appeal board identified errors in the judge's findings regarding the applicant's employment start date. This procedural error led to the case being remanded for a new decision.

Consequently, no final security clearance outcome has been reached at this stage, as the matter requires further adjudication to address the identified factual discrepancies concerning the applicant's employment timeline.

Conditions referenced

Disqualifying

HraisedDrug InvolvementThe applicant's marijuana use while employed by a Defense contractor raised security concerns.

Mitigating

EappliedPersonal ConductThe judge resolved Guideline E concerns in the applicant's favor.

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 issuedMar 17, 2014
Answer filed—
Hearing held—
Decision dateJan 13, 2015Appeal board remanded for a new decision.

Cite for

Remand Due to Errors in Findings of Fact Regarding Employment Start Date
Security Concerns Raised Under Guideline H Due to Drug Involvement
Favorable Resolution Under Guideline E for Personal Conduct

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

Remanded

The appeal involved a denial of a security clearance based on concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The Applicant argued that the Judge made factual errors regarding his employment start date. The Board found merit in the Applicant's argument and remanded the case for a new decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowShari Dam denied the clearance

Decided onthe written record

Guidelines belowGuideline HGuideline E

What the Board reviewed

Erroneous finding of fact, raised by the applicantError sustained
The Judge erred in finding that the Applicant began working for a Defense contractor in June 2012.

Why the Board ruled this way

The Board found that the Judge's findings regarding the Applicant's employment start date were not supported by the record evidence, which affected the adverse decision.

Ignored material evidence

On remand, the judge must

The Judge must remedy the error regarding the Applicant's employment start date and issue a new decision.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael 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: Applicant has demonstrated error. The appropriate resolution is to return the case for the Judge remedy the error. Adverse decision remanded. CASENO: 14-00509.a1 DATE: 01/13/2015 DATE: January 13, 2015 In Re: -----------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-00509

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 March 17, 2014, 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 decision on the written record. On September 30, 2014, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Shari Dam 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 and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guideline E are not at issue in this appeal. Consistent with the following, we remand the case to the Judge. The Judge’s Findings of Fact Applicant graduated from college in August 2012. He began a position with a Defense contractor in June 2012. In October 2013 he submitted a security clearance application (SCA). Applicant began using marijuana in September 2008, while he was in college. He continued using marijuana until April 2013, while he was working for a Defense contractor. He purchased marijuana from November 2010 until December 2011. He stated that, while in college, he used marijuana infrequently and for recreational purposes. He claims that he has not used marijuana for over a year. In his response to the File of Relevant Material, Applicant stated that he has continued to abstain from using marijuana and would agree to an automatic revocation of his clearance should he abuse illegal drugs in the future. The Judge’s Analysis The Judge concluded that Applicant’s drug use raised security concerns. In resolving the Guideline H concerns adversely to Applicant, she stated that he had used marijuana “for ten months (June 2012-April 2013) while employed as a Defense contractor.” Decision at 5. She said that it is unclear whether his motivation to stop using was his completion of his SCA. She also noted that Applicant has not received substance abuse treatment, and the record contains no evidence regarding whether Applicant continues to frequent places where he used marijuana. In her whole-person analysis, the Judge stated that Applicant had used marijuana on multiple occasions between 2008 and 2013. “That period included six months while he was working for a [D]efense contractor.” Id. at 6. She stated that his favorable evidence was not enough to outweigh evidence that he used marijuana for five years, purchased it for a year, continued using it after being employed by a Defense contractor, and did not stop using it until six months before completing his SCA. Applicant’s drug use was also alleged under Guideline E, which the Judge resolved in his favor.

DISCUSSION

The standard applicable in security clearance decisions “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). “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Directive, Enclosure 2 ¶ 2(b). In deciding whether the Judge's rulings or conclusions are erroneous, the Board will review the Judge's decision to determine whether: it does not examine relevant evidence; it fails to articulate a satisfactory explanation for its conclusions, including a rational connection between the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference of opinion. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). We examine a Judge’s findings to see if they are supported by “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.” Directive ¶ E3.1.32.1. Applicant contends that the Judge failed properly to examine the record evidence. Specifically, he alleges that she erred in finding that he had begun working for a Defense contractor in June 2012. He stated that he did not begin working for his employer until June 2013. We find this argument persuasive. In this case, the only evidence of Applicant’s start date for his current job is his SCA. Section 13A of this document states that he has worked for his employer from June 2013 to the present. Item 4 at 12. His start date is addressed nowhere else in the record.1 The Judge’s findings that Applicant had begun working in June 2012 and, consequently, that he used marijuana for several months while employed by a Defense contractor, are not supported by record evidence. Due to the emphasis that the Judge placed on these findings, we are not able to say that the errors are harmless. Accordingly, we conclude that the best resolution is to remand the case to the Judge for a new decision. The other issues raised by Applicant are not ripe for consideration at this time.

ORDER

The Decision is REMANDED. Signed: Michael Ra’anan Michael 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

FOOTNOTES

1 Record evidence reflects that Applicant was not employed on or about June 2012. The SCA states that in June 2012 Applicant was attending college. Item 4 at 15. See also Item 5, Personal Subject Interview, at 1-2: [Applicant] “was a full-time student at [college] from 09/2010 through 06/2011 and 08/2011 through 09/2012 and was not employed.”