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ISCR Case 16-03387.a1 — CASE

ISCR Case 16-03387.a1denied

Case Headnote

ISCR Case No. 16-03387.a1

Apr 26, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The denial stemmed from the applicant's admitted multiple instances of illegal drug use over several years.

Further contributing to the denial was the applicant's falsification of responses regarding his drug use on security clearance applications. The judge determined that the applicant minimized the significance of his conduct, which undermined his credibility.

The Appeal Board affirmed the denial, noting that the applicant did not identify any harmful error in the judge's decision. The Board emphasized the critical importance of reliability and trustworthiness in national security matters, concluding that the applicant did not meet the standards for a security clearance.

Conditions Referenced

Disqualifying

AG ¶ 25raisedDrug Involvement
AG ¶ 16raisedPersonal 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 issuedMar 3, 2017
Answer filed—
Hearing heldJan 31, 2018
Decision dateApr 26, 2018

Cite For

Affirmation of Denial Based on Drug Involvement Under Guideline H
Importance of Truthful Disclosures in Security Clearance Applications
Standards for Evaluating National Security Eligibility

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 filed by the applicant after the Administrative Judge denied his request for a security clearance based on drug involvement and personal conduct. The applicant argued that he should be given another chance to prove his security worthiness but did not identify any harmful error in the Judge's decision. The Board affirmed the decision, finding no basis for reversal or remand.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowStephanie C. Hess — denied the clearance

Decided onthe written record

Guidelines belowGuideline HGuideline E

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant did not identify any harmful error in the Judge's decision.

Why the Board ruled this way

The Board found that the Judge examined the relevant evidence and articulated a satisfactory explanation for the decision, which was sustainable on the record.

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
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 E; Guideline H DIGEST: Applicant requests another chance to prove his security worthiness, noting he can provide character letters. An applicant is not entitled to receive a new hearing just so he or she can have another opportunity to present his or her case. Adverse decision affirmed. CASENO: 16-03387.a1 DATE: 04/26/2018 DATE: April 26, 2018 In Re: ------------------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-03387

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 3, 2017, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline H (Drug Involvement)1 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 January 31, 2018, after considering the record, Administrative Judge Stephanie C. Hess denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The Judge’s Findings and Conclusions The SOR alleged that Applicant used marijuana on numerous occasions between 1995 and 2010; used ecstasy and psilocybin mushrooms in about 2002; used cocaine on at least two occasions between 2011 and 2013; and used marijuana and cocaine after being granted a security clearance in 2008. It also alleged he falsified his responses to questions about his use of illegal drugs in security clearance applications (SCAs) in 2000 and 2015 and in a DoD interrogatory in 2015.2 In his Answer to the SOR, Applicant admitted each SOR allegation with explanations. The Judge found against him on all of the SOR allegations.

DISCUSSION

In his appeal brief, Applicant notes the Judge concluded that he minimized the security significance of his conduct and apologizes for creating such an impression. He states that he was not attempting to minimize his indiscretions but was trying to fully disclose information about his conduct. He also states, “I clearly cannot take back or erase concerns which have risen from my poor judgement but I also have done and will continue to do all I can to mitigate those concerns.” Appeal Brief at 1. He requests another chance to prove his security worthiness, noting he can provide character letters. An applicant is not entitled to receive a new hearing just so he or she can have another opportunity to present his or her case. See, e.g., ISCR Case No. 14-03347 at 3 (App. Bd. May 27, 2016). Moreover, the Appeal Board has no authority to remand a case for further proceedings unless it identifies an error below that needs correcting. Directive ¶ E3.1.33.2. In his brief, Applicant also asks a number of questions about what he can do to obtain a security clearance. The Appeal Board has no authority to provide Applicant advice regarding such matters.3 He also asks if he could be granted a conditional security clearance. We note that failure to provide truthful and candid answers during the national security investigative process is a matter 1 Under the new adjudicative guidelines that became effective on June 8, 2017, the title of Guideline H was changed to “Drug Involvement and Substance Misuse.” 2 The Judge erred in stating the SOR alleged that Applicant falsified his SCA in 2000. The SOR actually alleged that that SCA was executed in 2008. 3 The Appeal Board only provides applicants information about the procedural requirements of the appeals process. Also, an applicant who is denied a clearance receives a letter with the adverse decision pointing out the provision of the Directive that govern reapplications. of special interest (Directive, Encl. 2, App. A ¶ 15), and illegal drug use raises questions about individual reliability, trustworthiness, and ability or willingness to comply with laws, rules, and regulations (Id. at 24). A conditional security clearance is not merited in this case. Applicant has not identified any harmful error in the Judge’s decision. The Judge examined the relevant evidence 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, Encl. 2, App A. ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility 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