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ISCR 14-00667.a1: Guideline E security clearance appeal, denied (2014) · CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date12/16/2014
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionsSee the hearing decision (Case 14-00667.h2) →See the hearing decision (Case 14-00667.h1) →
Participants
Applicant Representation: Pro Se
Judge: Jeffrey D. Billett, Michael Y. Ra'anan, James E. Moody
Government Counsel: James B. Norman
Guidelines Evaluated
- EPersonal Conduct · Against Applicant
- FFinancial Considerations · Against Applicant
- HDrug Involvement & Substance Misuse · Against Applicant
- JCriminal Conduct · Against Applicant
Other decisions whose allegations most closely resemble this one’s. Similarity of the allegations only.
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ISCR Case 14-00667.a1denied

Case headnote

ISCR Case No. 14-00667.a1

Dec 16, 2014· Hon. Jeffrey D. Billett· appeal

Summary

A 34-year-old unmarried applicant with two children was denied a security clearance due to concerns under Guidelines E (Personal Conduct), F (Financial Considerations), H (Drug Involvement), and J (Criminal Conduct). The denial stemmed from a consistent pattern of criminal activity and unresolved financial issues.

Specifically, the applicant demonstrated a steady pattern of criminal conduct dating back to 2001. Additionally, the applicant had twelve delinquent debts totaling $46,000, which remained unresolved at the time of the decision.

The judge found that the applicant failed to provide sufficient evidence of rehabilitation or a good-faith effort to address these debts. Consequently, the applicant's past actions and lack of substantiated rehabilitation efforts raised significant security concerns, leading to the denial of the security clearance.

Conditions referenced

Disqualifying

Guideline EraisedPersonal Conduct
Guideline FraisedFinancial Considerations
Guideline HraisedDrug Involvement
Guideline JraisedCriminal 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 issuedApr 7, 2014
Answer filed—Applicant requested a decision on the written record.
Hearing heldSep 11, 2014After the close of the record.
Decision dateDec 16, 2014

Cite for

Pattern of Criminal Activity Under Guideline J
Unresolved Financial Issues Under Guideline F
Insufficient Evidence of Rehabilitation Under Guideline H

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 a pattern of criminal activity and unresolved debts. The applicant argued that the Judge's decision was arbitrary and did not consider mitigating evidence. The Board affirmed the Judge's decision, finding no harmful error and that the Judge properly weighed the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRobert E. Coacher denied the clearance

Decided onthe written record

Guidelines belowGuideline FGuideline JGuideline HGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argued that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's decision, affirming that the Judge properly weighed the evidence and reached a sustainable conclusion regarding the applicant's security clearance.

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 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 F; Guideline J; Guideline H; Guideline E DIGEST: The Judge concluded that Applicant showed a steady pattern of criminal activity since 2001, and he concluded that there has not been a sufficient amount of time to determine whether his rehabilitative efforts will be successful. The Board finds no reason to believe that the Judge did not properly weigh the evidence or that he failed to consider all the evidence of record. Adverse decision affirmed. CASENO: 14-00667.a1 DATE: 12/16/2014 DATE: December 16, 2014 In Re: --------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-00667

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 April 7, 2014, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline F (Financial Considerations), Guideline J (Criminal Conduct), Guideline H (Drug Involvement), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested that the case be decided on the written record. On September 11, 2014, after the close of the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Robert E. Coacher denied Applicant’s request for a security clearance. Applicant appealed, pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable security clearance decision. The Judge made the following findings: Applicant is 34 years old, unmarried, and has two children. Applicant has twelve delinquent debts in the amount of $46,000. Applicant sold crack cocaine for profit from about June 2005 to December 2005 and used cocaine from June 2005 to November 2010. He was convicted of selling controlled substances and sentenced to three years probation in 2005 or 2006. He used crystal methamphetamine until about February 2006. He was convicted of battery and sentenced to three years probation in 2006. He was convicted of driving on a suspended license in 2008 and placed on probation. The probation was later revoked and then extended three years. He was arrested for trespass and refusing to leave private property in 2008. He was arrested for driving on a suspended license in May 2009 and January 2010. He was arrested and convicted for DUI in 2011. He was arrested for public intoxication in 2011 or 2012. In 2001 he was discharged from the military under other than honorable conditions because of a positive urinalysis test for marijuana. He used marijuana while holding a security clearance. In June, 2013, Applicant completed a security clearance questionnaire. He answered “no” to a question concerning drug use within the last seven years. He answered “yes” to the question concerning whether he had been charged, convicted, or sentenced regarding a crime within the last seven years. He gave the details for his 2005 conviction for selling drugs, but failed to list any additional crimes. He was also asked whether he had ever been or was currently on probation. He answered “yes” to this question in one place in the application and “no” when he was asked about any other offenses that may have resulted in probation. He was also asked if he was ever charged with an offense involving alcohol or drugs to which he answered “no.” These answers were not true. Applicant indicated that he is working with his sister to get his finances in order. Concerning his past criminal conduct, he acknowledged his past actions, but has now surrounded himself with “positive people” and lives for his kids. He no longer uses drugs or alcohol and he voluntarily attends AA meetings. He did not present any documents supporting these assertions. The Judge reached the following conclusions: Applicant’s debts are recent and remain unresolved. He did not provide sufficient evidence to show that the debts are unlikely to recur. There is no evidence that he has made a good-faith effort to pay the remaining debts. Applicant illegally used marijuana, cocaine, methamphetamine, and sold cocaine for profit on a number of occasions. His period of abstinence is insufficient to demonstrate his intent not to use illegal drugs in the future. He did not present sufficient evidence to establish that he completed a drug treatment program, nor did he present evidence of a favorable diagnosis. Applicant has shown a steady pattern of criminal activity since 2001. There has not been a sufficient amount of time to determine whether his rehabilitative efforts will be successful. His last criminal act is not sufficiently attenuated after considering his behavior in its totality. Falsifying information on a security clearance application casts doubt on Applicant’s trustworthiness, reliability, and good judgment. Applicant failed to mitigate the security concerns arising under Guideline F, Guideline J, Guideline H and Guideline E. Applicant asserts that he is a changed individual and is moving forward regardless of his past. He states that he is implementing ways to improve his credit standing. He argues that his past efforts to mitigate his prior drug use were not considered by the Judge. He states that his most recent convictions were alcohol related and were dismissed and were removed from his record. Applicant’s arguments do not establish error on the part of the Judge. Applicant makes numerous references on appeal to his circumstances since the close of the record. Applicant’s representations constitute new evidence, which the Board cannot consider. Directive ¶ E3.1.29. There is a rebuttable presumption that the Judge has considered all the record evidence. See, e.g., ISCR Case No. 07-18303 at 2 (App. Bd. Nov. 13, 2008). Applicant’s assertion that the Judge did not consider mitigating evidence regarding his history with drugs does not overcome this presumption. The Board finds no reason to believe that the Judge did not properly weigh the evidence or that he failed to consider all the evidence of record. See, e.g., ISCR Case No. 11-06622 at 4 (App. Bd. Jul. 2, 2012). We have considered the totality of Applicant’s arguments on appeal and find no error in the Judge’s ultimate conclusions regarding mitigation 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. See, e.g., ISCR Case No. 06- 10320 at 2 (App. Bd. Nov. 7, 2007). 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. 06-17409 at 3 (App. Bd. Oct. 12, 2007). The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007). 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 ultimate unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge is AFFIRMED. 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