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ISCR Case 16-03466.a1 — CASE

ISCR Case 16-03466.a1denied

Case Headnote

ISCR Case No. 16-03466.a1

Nov 19, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A 32-year-old applicant with an associate's degree was denied a security clearance under Guidelines E (Personal Conduct), H (Drug Involvement), and J (Criminal Conduct). The denial stemmed from the applicant's failure to disclose all criminal offenses on multiple security clearance applications, which raised concerns about a lack of candor.

Further disqualifying conditions included a history of marijuana use and multiple criminal charges. The judge specifically cited the applicant's lengthy history of drug and alcohol-related offenses as a significant security concern.

Ultimately, the judge concluded that the applicant's actions demonstrated a lack of candor and that the required rehabilitation period for his last infraction had not yet elapsed, leading to the denial of his security clearance.

Conditions Referenced

Disqualifying

AG ¶ 15raisedCriminal Conduct
AG ¶ 25raisedDrug Involvement
AG ¶ 14raisedPersonal 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 issuedFeb 15, 2017
Answer filed—
Hearing heldSep 6, 2018
Decision dateNov 19, 2018

Cite For

Failure to Disclose Criminal Offenses Under Guideline E
Lack of Candor in Security Clearance Applications Under Guideline J
History of Drug Use Impacting Security Clearance Eligibility 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 the applicant's failure to disclose criminal offenses and drug use. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and consistent with national security interests.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPaul J. Mason — denied the clearance

Decided onthe written record

Guidelines belowGuideline EGuideline HGuideline J

What the Board reviewed

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

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for the decision, maintaining a rational connection between the facts found and the choice made.

Standard of review applied

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

Appeal Board panel

Michael Ra’anan — Chair
James E. Moody
Charles C. Hale

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; Guideline J DIGEST: In completing a security clearance application (SCA) in 2014, Applicant failed to disclose all of his criminal offenses. In addition, he denied ever having been charged with a felony and ever having been charged with an alcohol-related offense. He also did not disclose his marijuana use. In 2016, Applicant completed another SCA. He did not disclose requested information about his illegal drug use. However, realizing the importance of candor, he submitted a new SCA in which he provided truthful information about his drug involvement. Adverse decision affirmed. CASENO: 16-03466.a1 DATE: 11/19/2018 DATE: November 19, 2018 In Re: ---------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ) ISCR Case No. 16-03466

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 February 15, 2017, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline E (Personal Conduct), Guideline J (Criminal Conduct), and Guideline H (Drug Involvement and Substance Abuse) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On September 6, 2018, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Paul J. Mason 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 Applicant is 32-years-old and has a child. He has an associate’s degree and is working on a bachelor’s degree as well as job-appropriate training certifications. Applicant has held a security clearance since 2015. The SOR alleged, and the Judge found, that Applicant began using marijuana when he was a teenager. In 2002, he was charged as a juvenile with felony possession of marijuana with intent to distribute. Although he subsequently dissociated himself from “unsavory individuals,” he continued to use marijuana, though at a reduced level. Decision at 3. His last use was in 2014, and he has no future intentions of resuming the practice. In addition to the possession offense described above, Applicant has been arrested and/or charged with several other criminal offenses, including illegal consumption while driving, reckless driving, obstruction of justice, drunk in public, and DUI. His last offense was a 2015 reckless driving charge. Applicant has been required to attend an outpatient treatment program and Alcoholics Anonymous meetings. He attributed his offenses to immaturity. In completing a security clearance application (SCA) in 2014, Applicant failed to disclose all of his criminal offenses. In addition, he denied ever having been charged with a felony and ever having been charged with an alcohol-related offense. He also did not disclose his marijuana use. Despite these omissions, Applicant received a clearance. In 2016, Applicant completed another SCA. He did not disclose requested information about his illegal drug use. However, realizing the importance of candor, he submitted a new SCA in which he provided truthful information about his drug involvement. He did not initially consider his falsifications “as being that important.” Id. at 5. He is remorseful for his omissions. The Judge’s Analysis The Judge cited to evidence that, despite his felony possession offense, Applicant continued using marijuana for another 12 years. He stated that Applicant presented differing explanations as to why he eventually stopped using marijuana. He concluded that Applicant’s lengthy history of drug, alcohol-related, and reckless driving offenses require a longer period of rehabilitation than the three years that had elapsed since his last infraction and the close of the record. Regarding Guideline E, the Judge found that Applicant’s falsifications were deliberate. He stated that Applicant was attempting to conceal material information about his criminal record and drug history.

In the whole-person analysis, the Judge cited to Applicant’s educational attainments and to his claims to have matured. On the other hand, he noted Applicant’s criminal offenses, as well as his 12-year history of illegal drug use and his deliberately falsifying two SCAs. In addressing Applicant’s criminal offenses, the Judge stated that the reckless driving charges demonstrated a pattern of disregard for the safety of others. Despite favorable record evidence, the Judge concluded that Applicant had not mitigated the concerns arising from his security-significant conduct.

DISCUSSION

Applicant’s appeal brief includes a substantial amount of information from outside the record. We cannot consider new evidence on appeal. Directive ¶ E3.1.29. Applicant cites to record evidence that he is the father of a child (which he asserts has helped him mature and become responsible), that he has disassociated from people who were bad influences, that he is pursuing educational goals, and that he has foresworn the sort of conduct underlying his charges and convictions. He also acknowledges his false statements but notes that he did submit a corrected SCA in which he disclosed all of his drug and criminal history. Applicant’s arguments are not enough to demonstrate, however, that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 17-02463 at 2 (App. Bd. Sep. 10, 2018). The record supports a conclusion 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 Judge’s adverse 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: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board