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ISCR Case 17-00777.a1 — CASE

ISCR Case 17-00777.a1denied

Case Headnote

ISCR Case No. 17-00777.a1

May 25, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied under Guideline E (Personal Conduct) due to deliberate omissions regarding marijuana use on his security clearance applications. The judge found that the applicant intentionally concealed his marijuana use from 2016, citing disqualifying condition E2.A5.2. The applicant's attempts to mitigate these omissions were deemed insufficient, as they were neither prompt nor made in good faith.

The applicant's arguments on appeal did not demonstrate that the judge had mis-weighed the evidence. Consequently, the appeal board affirmed the denial, agreeing with the judge's conclusions that the applicant's failure to disclose material information was deliberate and that his mitigating arguments were unpersuasive.

Therefore, the security clearance was denied based on Guideline E, specifically due to the applicant's intentional misrepresentation and lack of candor regarding his past marijuana use.

Conditions Referenced

Disqualifying

E2.A5.2.raisedDeliberate Omission of Material Information

Mitigating

E2.A5.3.rejectedGood Faith Efforts to Correct OmissionsThe judge found the applicant's efforts to correct omissions were neither prompt nor made in good faith.

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 issuedMay 11, 2017
Answer filed—
Hearing heldFeb 21, 2018
Decision dateMay 25, 2018

Cite For

Deliberate Omissions Regarding Marijuana Use Under Guideline E
Insufficient Mitigation Efforts in Personal Conduct Cases
Affirmation of Adverse Decisions Based on Credibility Assessments of the Applicant's Testimony

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 an applicant who was denied a security clearance due to concerns under Guideline E related to personal conduct. The applicant argued that the Judge's decision was arbitrary and that his omissions were not deliberate. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJennifer I. Goldstein — denied the clearance

Decided ona hearing

Guidelines belowGuideline E

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 findings were reasonable inferences from the evidence and that the Judge properly weighed the evidence presented by the Applicant. The decision was affirmed as it was consistent with the interests of national security.

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 E DIGEST: Applicant argues that his 2016 omission was not deliberate. He also contends that the Judge did not properly weigh his evidence in mitigation, which he asserts shows that he made good faith efforts to correct his omissions. He states that his use of marijuana in 2013 was a rare occurrence and that he is not subject to blackmail due to his infractions. The Judge’s finding about the deliberate nature of Applicant’s 2016 omission constitutes a reasonable inference from the evidence. Applicant’s arguments are not enough to show that the Judge mis-weighed the evidence or that she failed to consider all of the evidence in the record. Adverse decision affirmed. CASENO: 17-00777.a1 DATE: 05/25/2018 DATE: May 25, 2018 In Re: --------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 17-00777

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 May 11, 2017, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 21, 2018, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Jennifer I. Goldstein 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 Applicant experimented with marijuana between 2005 and 2008, while he was in college. He completed a security clearance application (SCA) in 2009, in which he did not disclose his marijuana use. Applicant was granted a clearance. In December 2013, while holding a clearance, Applicant smoked marijuana. When he completed an SCA in 2016, he again failed to disclose his marijuana use, including his use while holding a clearance. He testified that he did not recall this use when he completed his 2016 SCA. Applicant has not used marijuana since December 2013, and he no longer associates with users of illegal drugs. He is considered reliable and trustworthy. Applicant has received awards for the quality of his duty performance. The Judge found that Applicant’s efforts to correct his omissions were neither prompt nor done in good faith. She found that they were deliberate efforts to conceal material information from the Government. She stated that false statements during the clearance adjudication process raise serious concerns. She also stated that use of marijuana while holding a clearance raises questions about Applicant’s judgment and reliability that his evidence was not sufficient to mitigate.

DISCUSSION

Applicant argues that his 2016 omission was not deliberate. He also contends that the Judge did not properly weigh his evidence in mitigation, which he asserts shows that he made good faith efforts to correct his omissions. He states that his use of marijuana in 2013 was a rare occurrence and that he is not subject to blackmail due to his infractions. The Judge’s finding about the deliberate nature of Applicant’s 2016 omission constitutes a reasonable inference from the evidence. See, e.g., ISCR Case No. 14-04724 at 3 (App. Bd. Aug. 18, 2017). Applicant’s arguments are not enough to show that the Judge mis-weighed the evidence or that she failed to consider all of the evidence in the record. See, e.g., ISCR Case No. 17-00257 at 3 (App. Bd. Dec. 7, 2017). The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. Failure to provide truthful answers during the clearance process will normally result in an adverse determination. Directive, Encl. 2, App. A. ¶ 15. 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