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ISCR Case 04-12778.a1 — CASE

ISCR Case 04-12778.a1denied

Case Headnote

ISCR Case No. 04-12778.a1

Mar 19, 2007· Hon. Jean E. Smallin· appeal

Summary

A 51-year-old married employee of a defense contractor was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The denial was based on the applicant making false statements on his security clearance application and a history of drug use.

Specifically, the applicant provided inaccurate information regarding his drug use history on his security clearance application. Furthermore, his record included multiple positive drug tests while he was on probation, indicating a pattern of drug use. These issues triggered disqualifying conditions J1 and E2.

The appeal board affirmed the denial, concluding that the applicant did not successfully mitigate the concerns raised by his conduct. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

J1raisedCriminal Conduct
E2raisedFalse Statements

Key Rule Quoted

“The application of disqualifying or mitigating conditions requires the exercise of sound discretion in light of the record evidence as a whole.”
— ISCR Case No. 01-14740 at 7 (App. Bd. Jan. 15, 2003)

Procedural Posture

SOR issuedAug 5, 2005
Answer filed—
Hearing heldSep 29, 2006
Decision dateMar 19, 2007

Cite For

False Statements on Security Clearance Applications Under Guideline E
History of Drug Use Impacting Security Clearance Under Guideline J
Burden of Proof for Mitigating Conditions in Security Clearance Cases

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 security concerns under Guidelines E and J due to the Applicant's false statements on his application. The Applicant argued that the Judge should have mitigated these concerns as an isolated incident. The Board affirmed the Judge's decision, finding no harmful error in the denial.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPhilip S. Howe — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline J

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant argued that the Judge should have mitigated the security concern because his falsification of his security clearance application was an isolated incident.

Why the Board ruled this way

The Board concluded that the Judge made a reasonable determination based on unchallenged findings of fact that Applicant failed to meet his burden of mitigating the security concerns raised by his false statements on the security clearance application.

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

Jean E. Smallin
William S. Fields
James E. Moody

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 J DIGEST: Given the Judge’s unchallenged findings of fact, the Judge made a reasonable determination that Applicant had failed to meet his burden of mitigating his false statements. Adverse decision affirmed. CASENO: 04-12778.a1 DATE: 03/19/2007 DATE: March 19, 2007 In Re: ---------- SSN: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 04-12778

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Department Counsel FOR APPLICANT Pro Se 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 E (Personal Conduct) and Guideline J (Criminal Conduct), of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 29, 2006, after the hearing, Applicant also argues for a different result because his job only requires access to a secure area rather than access to classified information itself. However, this distinction is irrelevant, insofar as either type of access implicates the national security interests of the United States and requires a finding that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. See, e.g., ISCR Case No. 98-0055 at 4 (App. Bd. Dec. 31, 1998). Administrative Judge Philip S. Howe denied Applicant’s request for a security clearance. Applicant submitted a timely appeal pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. The Board construes Applicant’s appeal brief as arguing that the Judge should have mitigated the security concern addressed under Guidelines E and J, because his falsification of his security clearance application amounted to an isolated incident. Otherwise his brief does not make an allegation of harmful error.1 The Judge made the following findings: Applicant, a 51 year old married employee of a defense contractor, was arrested in October 1996 for speeding and possession of marijuana. In 1998 he pled guilty to the marijuana charge and was placed on probation, with a deferred judgement. Later, while still on probation, he smoked marijuana during a vacation to Florida. Upon his return, his probation officer directed Applicant to submit to a drug test, which yielded a positive result for marijuana. As a consequence, his probation was extended and he was required to submit to monthly drug tests. He subsequently failed one of these tests, which yielded a positive result for marijuana. In addition to these incidents, Applicant used marijuana from 1992 to 1999, beginning on a weekly basis but increasing his usage to several times a week. Applicant no longer associates with his drug using companions. On April 3, 2002, Applicant completed his security clearance application. He answered “no” to question 24, which inquired if he had ever been charged or convicted of an offense related to alcohol or drugs. Applicant stated that, since the charges in his marijuana possession case were dismissed in 2000, he had a clean record and believed he could truthfully answer the question in the negative. Additionally, he answered “no” to question 27, which inquired if he had illegally used any controlled substance during the previous 7 years. Applicant admitted that he was afraid that a truthful answer to this question would affect his employment. The application of disqualifying or mitigating conditions requires the exercise of sound discretion in light of the record evidence as a whole. See, e.g., ISCR Case No. 01-14740 at 7 (App. Bd. Jan. 15, 2003). As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. A party’s disagreement with the Judge's weighing of the record evidence is not sufficient to demonstrate the Judge weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. See ISCR Case No. 05-00609 at 2-3 (App. Bd. Nov. 24, 2006). Given the Judge’s unchallenged findings in this case, we conclude that he made a reasonable determination that Applicant had not met his burden of mitigating the Guideline E and J security concerns raised by his false statements on the security clearance application. Thus the Judge did not err in denying Applicant a clearance.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board