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ISCR Case 03-06241.a1 — CASE

ISCR Case 03-06241.a1denied

Case Headnote

ISCR Case No. 03-06241.a1

Nov 16, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, represented by counsel, was denied a security clearance under Guidelines E (Personal Conduct) and J (Criminal Conduct) due to a history of drug use and criminal conduct. The applicant's drug use spanned from 1971 to 1994, and included a 1974 conviction for conspiracy to distribute illegal drugs. Notably, the applicant also sold marijuana while actively holding a security clearance for a defense contractor.

A significant factor in the denial was the applicant's failure to disclose the 1974 conviction on the security clearance application. The applicant claimed the conviction had been expunged, but the judge found this explanation lacked credibility.

Despite the applicant's claims of mitigation, the judge determined that the established history of drug-related offenses and the failure to fully disclose prior convictions outweighed any presented mitigating factors. The decision underscored the applicant's burden to demonstrate mitigation against the government's evidence of security concerns, ultimately resulting in a denial of the security clearance.

Conditions Referenced

Disqualifying

JraisedCriminal Conduct
EraisedPersonal Conduct

Mitigating

J.2appliedThe Criminal Behavior Was Not RecentThe judge found some mitigation due to the passage of time since the conduct.
E.2rejectedThe Applicant Has Acknowledged the Conduct and Has Taken Steps to Correct ItThe judge explained why the evidence submitted in mitigation was insufficient to overcome the government's security concerns.

Key Rule Quoted

“The government need not wait until an applicant actually mishandles classified information before it can deny or revoke access to such information.”
— Adams v. Laird, 420 F. 2d 230, 238-239 (D.C. Cir. 1969), cert. denied, 397 U.S. 1039 (1970)

Procedural Posture

SOR issuedAug 5, 2005
Answer filed—
Hearing heldJun 29, 2007
Decision dateNov 16, 2007

Cite For

Burden of Proof on Applicant to Establish Mitigation Against Government Evidence
Seriousness of Past Conduct Outweighs Mitigating Factors
Government's Ability to Deny Clearance Based on Past Conduct Without Current Mishandling of Classified Information

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 seeking a security clearance who was denied due to concerns under Guidelines J and E related to past criminal conduct and personal conduct. The applicant argued that the Judge's decision was arbitrary and capricious for not finding mitigation. The Board affirmed the Judge's decision, finding it supported by substantial evidence and not arbitrary or capricious.

Appealed bythe applicant

Applicant representationAttorney

Judge belowElizabeth M. Matchinski — denied the clearance

Decided ona hearing

Guidelines belowGuideline JGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge's decision was arbitrary, capricious, or contrary to law due to failure to find that Applicant's conduct was mitigated.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the applicant failed to demonstrate that the Judge's decision was arbitrary, capricious, or contrary to law. The Judge properly weighed the evidence and applied the relevant guidelines.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan — Chair
Jean E. Smallin
William S. Fields

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 J; Guideline E DIGEST: Once the government presents evidence raising security concerns the burden is on the applicant to establish mitigation. The government need not wait until an applicant actually mishandles classified information before it can deny or revoke access to such information. Adverse decision affirmed. CASENO: 03-06241.a1 DATE: 11/16/2007 DATE: November 16, 2007 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 03-06241

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Jeremiah Donovan, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 5, 2005, DOHA issued a statement of reasons advising Applicant of the basis for that decision—security concerns raised under 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 June 29, 2007, after the hearing, Administrative Judge Elizabeth M. Matchinski denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary, capricious, or contrary to law, because the Judge failed to find that Applicant’s conduct was mitigated. The Judge made the following relevant findings of fact: Applicant used marijuana with varying frequency from 1971 until at least 1994. Applicant was convicted of conspiracy to distribute illegal drugs in about 1974. Applicant sold marijuana for profit to a coworker while working for a defense contractor and holding a security clearance. In 1994, Applicant was convicted of selling illegal drugs. When Applicant completed a security clearance application (SF 86) in 2002, he listed his 1994 drug conviction, but not the one in 1974. “[T]here is a strong presumption against granting a security clearance.” Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). Once the government th presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. In this case, Applicant admitted most of the conduct. With regard to the falsification if his SF 86, Applicant testified that he did not include his 1974 conviction because he thought it did not have to be listed because he believed it came under the Federal Controlled Substances Act exception to the question and had been expunged. The Judge was not required, as a matter of law, to accept Applicant’s testimony. Rather, the Judge had to consider Applicant’s statements in light of the record evidence as a whole. See, e.g., ISCR Case No. 99-0005 at 3 (App. Bd. Apr. 19, 2000). Moreover, the application of disqualifying and mitigating conditions does not turn simply on a finding that one or more of them apply to the particular facts of a case. See, e.g., ISCR Case No. 01-14740 at 7 (Jan. 15, 2003). In this case, the Judge found some mitigation due to the passage of time since the conduct at issue. However, that did not compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge had to weigh the evidence as a whole and decide whether the favorable evidence outweighed the unfavorable, or vice versa. Applicant’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-17691 at 3 (App. Bd. Jul. 19, 2007). In this case, the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct. The Judge considered the possible application of relevant mitigating conditions and discussed why she did not apply them in Applicant’s case. The Judge explained why the evidence Applicant submitted in mitigation was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 02-28041 at 4 (App. Bd. Jun. 29, 2005). In his brief, Applicant points out that he has been a dutiful employee for many years, has never been accused of using marijuana on the job or allowing marijuana to affect his job performance, and has not used marijuana since 1994. The government need not wait until an applicant actually mishandles classified information before it can deny or revoke access to such information. See Adams v. Laird, 420 F. 2d 230, 238-239 (D.C. Cir. 1969), cert. denied, 397 U.S. 1039 (1970). An applicant with good or exemplary job performance may engage in conduct that has negative security implications. See, e.g., ISCR Case No. 06-10950 at 2 (App. Bd. Jul. 25, 2007). The Directive’s Guidelines set forth a variety of examples of off-duty conduct and circumstances which are of security significance. Id. Given the record that was before her, the Judge’s ultimate unfavorable clearance decision under Guidelines J and E is sustainable.

ORDER

The Judge’s decision denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Raanan Administrative Judge Chairman, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board