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ISCR 17-00582.a1: Guideline B security clearance appeal, denied (2018) · CASE

ISCR Case 17-00582.a1denied

Case headnote

ISCR Case No. 17-00582.a1

Oct 25, 2018· Hon. Charles C. Hale· appeal

Summary

A U.S. immigrant, residing in the country since 2009, was denied a security clearance primarily under Guideline E (Personal Conduct) and Guideline B (Foreign Influence). The denial stemmed from the applicant's deliberate omission of past drug use on her security clearance application.

During the evaluation, the judge found the applicant's testimony regarding her truthfulness to lack credibility. This finding was central to the decision, as honest disclosure is a critical component of the security clearance process.

Despite the applicant raising mitigating conditions under AG ¶ 17, the disqualifying conditions under AG ¶ 16, specifically the deliberate deception and lack of credible testimony, led to the denial of the security clearance.

Conditions referenced

Disqualifying

AG ¶ 16raisedPersonal ConductThe applicant's deliberate deception regarding drug use raised security concerns.

Mitigating

AG ¶ 17notedMitigating Conditions

Key rule quoted

“Failure to give truthful answers to lawful questions in connection with a clearance determination will normally result in an adverse decision.”
Directive ¶ 15.

Procedural posture

SOR issuedMar 6, 2017
Answer filed—
Hearing heldAug 16, 2018
Decision dateOct 25, 2018

Cite for

Deliberate Deception Regarding Drug Use Under Guideline E
Credibility of Applicant's Testimony in Security Clearance Cases
Importance of Truthful Disclosures in Clearance Determinations

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 her request for a security clearance based on concerns under Guideline B and Guideline E. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding substantial evidence supporting the conclusion that the applicant was deliberately deceptive regarding her drug use.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowGina L. Marine denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline E

What the Board reviewed

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

Why the Board ruled this way

The Judge's finding that Applicant was deliberately deceptive on her SCA is supported by substantial evidence. The decision is sustainable on this record, and the Judge articulated a satisfactory explanation for the decision.

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

James E. Moody
James F. Duffy
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 B; Guideline E DIGEST: Applicant contends her answers given to the interviewer and at the hearing were truthful as she understood them. She states that she had not prepared her statement of intent and that she did not recognize that it constituted an admission of drug use. She also stated that she now understands that any attempt to use marijuana, even if unsuccessful, is not permitted. The Judge’s finding that Applicant was deliberately deceptive on her SCA is supported by substantial evidence. Adverse decision affirmed. CASENO: 17-00582.a1 DATE: 10/25/2018 DATE: October 25, 2018 In Re: -------------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 17-00582

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 6, 2017, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On August 16, 2018, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Gina L. Marine 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. The Judge’s favorable findings under Guideline B are not at issue in this appeal. Consistent with the following, we affirm. The Judge’s Findings of Fact and Analysis Applicant immigrated to the U.S. in 2009. She was granted access to sensitive information in 2013. The current adjudication is for her first application for a security clearance. Applicant told the investigator that she tried marijuana one time, in the company of another person. She stated in her counter-intelligence (CI) screening that she did so out of curiosity. However, Applicant did not disclose this drug use in her security clearance application (SCA). She stated that she omitted this conduct because she thought that marijuana use was legal in the jurisdiction where the incident occurred. Later, Applicant signed a statement of intent never to use illegal drugs again. At the hearing, Applicant denied ever having used marijuana. She testified that the CI screening report misrepresented her answers and that she had been nervous during the interview. When asked at the hearing why she had signed a statement of intent never to use drugs again, thereby implying that she had used them in the past, she stated that she was not sure, although she may have associated merely smelling marijuana with its use. Applicant has served with the U.S. overseas, where her work was highly regarded and where she served at great personal risk to her safety. She served as an instructor at a U.S. military college, where she was praised by her supervisor and by her students. The Judge found that Applicant’s omission of her drug use was deliberate. She stated that she did not find Applicant’s hearing testimony to be credible. Given this finding and Applicant’s subsequent lack of candor, the Judge concluded that Applicant had not mitigated the concerns arising from her false statement.

DISCUSSION

Applicant contends her answers given to the interviewer and at the hearing were truthful as she understood them. She states that she had not prepared her statement of intent and that she did not recognize that it constituted an admission of drug use. She also stated that she now understands that any attempt to use marijuana, even if unsuccessful, is not permitted. The Judge’s finding that Applicant was deliberately deceptive on her SCA is supported by substantial evidence. See, e.g., ISCR Case No. 17-02145 at 3 (App. Bd. Sep. 10, 2018). Applicant has not demonstrated that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Id. Failure to give truthful answers to lawful questions in connection with a clearance determination will normally result in an adverse decision. Directive ¶ 15. 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board Signed: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board