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ISCR Case 15-01494.a1 — CASE

ISCR Case 15-01494.a1denied

Case Headnote

ISCR Case No. 15-01494.a1

Jul 8, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A 57-year-old defense contractor, with a history of holding a security clearance, was denied a new clearance due to concerns under Guidelines E (Personal Conduct), F (Financial Considerations), and J (Criminal Conduct). The primary issue stemmed from a charge of marijuana possession.

The judge found the applicant's testimony regarding the incident to be not credible and inconsistent with police reports. Disqualifying conditions under AG ¶ 14, AG ¶ 15, and AG ¶ 19 were raised.

Despite the applicant's claims of error in the judge's findings, the appeal board affirmed the denial. The board concluded that any alleged errors were harmless and did not alter the outcome, emphasizing the substantial evidence supporting the security concerns and the paramount importance of national security in clearance decisions.

Conditions Referenced

Disqualifying

AG ¶ 15raisedCriminal Conduct
AG ¶ 14raisedPersonal Conduct
AG ¶ 19raisedFinancial Considerations

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 issuedSep 3, 2015
Answer filed—
Hearing heldApr 20, 2016
Decision dateJul 8, 2016

Cite For

Substantial Evidence of Security Concerns Under Guideline J Due to Criminal Conduct
Credibility Determinations Based on Inconsistencies in Testimony and Evidence
Harmless Error Doctrine in Security Clearance Appeals

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 was brought by the applicant after the Administrative Judge denied his request for a security clearance based on security concerns under multiple guidelines. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding that any alleged errors were harmless and that the Judge's findings were supported by substantial evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowNoreen A. Lynch — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline FGuideline JGuideline E

What the Board reviewed

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

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that even if the Judge erred in making certain findings, those errors were harmless and did not affect the outcome of the case. The Judge's material findings were based on substantial evidence and reasonable inferences drawn from the evidence.

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
James E. Moody
James F. Duffy

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 DIGEST: Even if the Judge erred in making the challenged findings, such errors were harmless because they did not likely affect the outcome of the case given the evidence as a whole. The Judge’s material findings of security concern are based upon substantial evidence or constitute reasonable inferences or conclusions that could be drawn from the evidence. Adverse decision affirmed. CASENO: 15-01494.a1 DATE: 07/08/2016 DATE: July 8, 2016 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-01494

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On September 3, 2015, 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), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On April 20, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Noreen A. Lynch 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 and Analysis

The Judge found in a favor of Applicant on the alleged debts and against him on allegations that he was arrested for, and charged with, possession of marijuana in November 2011 after having been granted a security clearance. Applicant is a 57-year-old employee of a defense contractor. He has worked for his current employer since 2005. He served in the U.S. military from 1979 to 1987 and received an honorable discharge. He is married and has children. He has held a security clearance since 1979. At the hearing, Applicant testified that in 2011 he found a makeup bag in a playground where his children were playing basketball. There was marijuana in the bag. He put the marijuana in his pocket with the intent of throwing it away. He forgot about that marijuana after he placed it in the console of his truck. Two weeks later, the police approached his vehicle while he was in a parking lot of a restaurant. The police found the marijuana after he consented to a search of the vehicle. He completed 24 hours of court-ordered community service as a result of the possession of marijuana charge. He stated that he does not use marijuana or other drugs. He reported the incident to his facility security officer, but did not do so right away. The police report reflected that a wooden smoking device containing marijuana was found in Applicant’s truck. It also indicated that the driver jumped out of the vehicle when he saw the officer approaching. The report noted that it appeared someone had just packed the smoking device with marijuana. Next to the smoking device was a black and tan pouch containing a clear baggie of a green leafy substance that appeared to be marijuana. Upon questioning, Applicant told the police officer that it was for his personal use. In post-hearing submissions, Applicant provided a negative drug test and a declaration that the police report confirmed his testimony. After reviewing the transcript and police report, the Judge found to the contrary. She concluded that his version of the events was not credible and differed from the police report. She also noted that he testified there was no pipe or drug paraphernalia present and changed his story from him having found the marijuana to this being an isolated incident. Applicant has received a number work-related awards over the years. His manager, who has worked with him for 30 years, testified he is a trustworthy individual and excellent worker. Two other coworkers also testified in support of Applicant.

DISCUSSION

Applicant contends that the Judge erred in making findings of fact. First, he points out that the Judge found that Applicant has “adult children” when he has one child who is 15 years old and another who is 18 years old. Next, he stated that Judge found the driver (Applicant) jumped out of the vehicle as the police approached; however, the police report stated that the driver “jumped out of his seat.” Finally, Applicant asserts he was not arrested for possession of marijuana, but only cited for that offense. Of note, the cover letter forwarding the police report stated it pertains “to the arrest of” Applicant in 2011, but the police report states he was issued a summons to appear in court. Even if the Judge erred in making those findings, such errors were harmless because they did not likely affect the outcome of the case given the evidence as a whole. The Judge’s material findings of security concern are based upon substantial evidence or constitute reasonable inferences or conclusions that could be drawn from the evidence. See, e.g., ISCR Case No. 12-03420 at 3 (App. Bd. Jul. 25, 2014). Applicant also argues that the Judge did not consider all of the evidence in the record. He emphasizes that his conduct in question happened over five years ago and cites to the testimony of witnesses about his trustworthiness. The Judge, however, made findings about those matters. He further argues that based on the record the Judge should have found the security concerns mitigated. This argument amounts to a disagreement with the Judge’s weighing of the evidence, which is not sufficient to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-04719 at 2 (App. Bd. Apr. 6, 2016). Furthermore, the Judge’s consideration of the totality of the evidence in reaching her decision complies with the whole-person analysis requirements. See Directive, ¶ 6.3, Enclosure 2 ¶ 2, and ISCR Case No. 14- 02806 at 4 (App. Bd. Sep. 9, 2015). Applicant has failed to identify any harmful error. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on the 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: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E Moody James E. Moody Administrative Judge Member, Appeal Board Signed; James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board