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ISCR 05-07182.a1: Guideline E security clearance appeal, denied (2007) · CASE

ISCR Case 05-07182.a1denied

Case headnote

ISCR Case No. 05-07182.a1

May 17, 2007· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance based on concerns under Guideline H (Drug Involvement), Guideline J (Criminal Conduct), and Guideline E (Personal Conduct). The primary disqualifying factor was the applicant's guilty plea to drug charges.

The judge determined that while the applicant's testimony was relevant, it did not sufficiently mitigate the evidence of disqualifying conduct. Consequently, the judge found that the applicant's mitigating evidence did not outweigh the seriousness of the drug-related criminal conduct.

The denial was affirmed on appeal, with the appellate body concluding that the judge's findings were well-supported by the record evidence. The mitigating arguments presented were deemed insufficient to overcome the established security concerns, leading to the final decision to deny the security clearance.

Conditions referenced

Disqualifying

AG HraisedDrug Involvement
AG JraisedCriminal Conduct
AG EraisedPersonal Conduct

Key rule quoted

“The application of disqualifying and mitigating conditions does not turn simply on a finding that one or more of them applies to the particular facts of a case.”

Procedural posture

SOR issuedJan 27, 2006
Answer filed—
Hearing heldSep 29, 2006
Decision dateMay 17, 2007

Cite for

Affirmation of Denial Based on Drug Involvement Under Guideline H
Consideration of Mitigating Evidence in Light of Disqualifying Conduct
The Relevance of Applicant Testimony Not Being Binding on the Judge's Decision

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 based on concerns under Guidelines H, J, and E. The applicant argued that the Administrative Judge's decision was arbitrary and capricious, particularly regarding her testimony and the mitigation of her past drug offenses. The Board affirmed the Judge's decision, finding it supported by substantial evidence and not contrary to law.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMarc E. Curry denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline JGuideline E

What the Board reviewed

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

Why the Board ruled this way

The Board affirmed the Administrative Judge's decision, finding that the Judge's material findings were reasonably supported by the record evidence and that the conclusions followed rationally from those findings. The Board noted that the Judge's weighing of the evidence was not arbitrary or capricious.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decision

Appeal Board panel

Michael D. Hipple
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 H; Guideline J; Guideline E DIGEST: Applicant’s testimony at the hearing was relevant evidence but it was not binding on the Judge. Adverse decision affirmed. CASENO: 05-07182.a1 DATE: 05/17/2007 DATE: May 17, 2007 In Re: --------- SSN:------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 05-07182

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT William F. Savarino, Esq.

The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On January 27, 2006, DOHA issued a statement of reasons advising Applicant of the basis for that decision—security concerns raised under Guideline H (Drug Involvement), 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 September 29, 2006, after the hearing, Administrative Judge Marc E. Curry denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. On appeal, Applicant raises the following issue: whether the Administrative Judge’s decision is arbitrary, capricious, or contrary to law. Specifically, Applicant argues that the Judge should have accepted Applicant’s testimony of her innocence as to drug charges in 2004, despite her guilty plea to those charges at the time, and her testimony that she did not intentionally falsify her security clearance application because of the state court expungement of her drug offenses. She contends that the Judge should have mitigated her drug arrests in 1995 and 1993 due to the passage of time and the fact that the charges in 1995 were dismissed. Applicant also argues for mitigation due to successful completion of a drug rehabilitation program. The Board affirms the Judge’s decision. Applicant’s testimony at the hearing about the events at issue was relevant evidence, but it was not binding on the Administrative Judge. As the trier of fact, the Judge has to consider an applicant’s testimony in light of the record evidence as a whole. See, e.g., ISCR Case No. 02-22404 at 4 (App. Bd. May 5, 2005). Here, the Judge’s material findings were reasonably supported by the record evidence, and the Judge’s conclusions follow rationally from the Judge’s findings. The application of disqualifying and mitigating conditions does not turn simply on a finding that one or more of them applies to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole. Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. 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. An 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. 05-02471 at 2 (App. Bd. Apr. 11, 2007). In this case, the Judge reasonably weighed the mitigating evidence against the seriousness of the disqualifying conduct, and considered the possible application of relevant mitigating conditions. He reasonably explained why there was insufficient mitigating evidence to overcome the government’s security concerns. The Board does not review a case de novo. The favorable evidence cited by the Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case 05-02619 at 2 (App. Bd. Mar. 21, 2007). Given the record that was before him, the Judge’s ultimate unfavorable security clearance decision under Guidelines H, J, and E is sustainable.

ORDER

The Judge’s decision denying Applicant a clearance is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, 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