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ISCR 06-23318.a1: Guideline E security clearance appeal, denied (2007) · CASE

ISCR Case 06-23318.a1denied

Case headnote

ISCR Case No. 06-23318.a1

Oct 30, 2007· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance due to concerns under Guideline E (Personal Conduct), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct). The denial stemmed from the applicant's admitted history of cocaine use, including while previously holding a security clearance, and multiple arrests for DUI and other offenses.

Specific disqualifying conditions raised included AG ¶ 25, AG ¶ 24, and AG ¶ 15. While the applicant admitted to most allegations, they failed to provide sufficient mitigating evidence. This included a lack of documentary evidence or witness statements to address the security concerns.

The appeal board affirmed the denial, emphasizing the applicant's credibility and the overall weight of the evidence presented. Ultimately, the applicant was DENIED a security clearance.

Conditions referenced

Disqualifying

AG ¶ 25raisedCriminal Conduct
AG ¶ 24raisedDrug Involvement
AG ¶ 15raisedPersonal Conduct

Key rule quoted

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

Procedural posture

SOR issuedJan 4, 2007
Answer filed—
Hearing held—decided on written record
Decision dateOct 30, 2007

Cite for

Denial Based on History of Drug Involvement Under Guideline H
Importance of Credibility in Security Clearance Decisions
Government's Authority to Deny Clearance Without Actual 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 a denial of a security clearance based on concerns under Guideline H (Drug Involvement), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct). The applicant argued that the Administrative Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding that the applicant did not meet the burden of proof to mitigate the government's security concerns.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJoan Caton Anthony denied the clearance

Decided onthe written record

Guidelines belowGuideline HGuideline EGuideline J

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, and contrary to law.

Why the Board ruled this way

The Board found that the Administrative Judge's decision was supported by substantial evidence and that the applicant did not demonstrate that the Judge's conclusions were arbitrary, capricious, or contrary to law. The applicant's history of drug use and failure to provide complete information on security clearance applications were significant factors in 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

Jeffrey D. Billett
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

FOR OFFICIAL USE ONLY When unredacted this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies KEYWORD: Guideline H; Guideline E DIGEST: The federal government need not wait for an applicant to mishandle classified information before it can deny or revoke access to such material. Adverse decision affirmed. CASENO: 06-23318.a1 DATE: 10/30/2007 DATE: October 30, 2007 In Re: ------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-23318

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Michael C. Bruno, Esq.

The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On January 4, 2007, DOHA issued a statement of reasons advising Applicant of the basis for that decision—security concerns raised under Guideline H (Drug Involvement), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992), as amended (Directive). Applicant requested the case be decided on the written record. On May 24, 2007, after considering the record, Administrative Judge Joan Caton Anthony 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 Administrative Judge’s decision is arbitrary, capricious, and contrary to law. In this case, Applicant had a history of cocaine use, including while he held a security clearance. He purchased cocaine and on two occasions pled guilty to cocaine possession, a felony. Following another arrest, for possession of a controlled substance, Applicant was not prosecuted. Applicant was arrested four times for driving while intoxicated or driving under the influence and, on one of those occasions, for driving with a suspended license. Applicant provided only some of the above information when he filled out security clearance applications in 1992 and 2005.

Applicant admitted most of the allegations, and those admissions were sufficient to establish the government’s case against him. The burden of proof then shifted to Applicant to rebut, explain, extenuate, or mitigate the case against him. See Directive ¶ E3.1.15. With regard to the falsification allegations, Applicant explained that his omissions were due either to inadvertence or to his misunderstanding of the questions. In mitigation of the Guideline H concerns, Applicant stated that he had completely stopped using cocaine and had changed his lifestyle for the better due to his religious involvement. He also pointed out that he has held a security clearance for 31 years, been a dutiful employee, and never compromised national security. Applicant did not submit any documentary exhibits or witness statements. With regard to Applicant’s work record, the federal government need not wait until an applicant actually mishandles classified material before it can deny or revoke access to such material. 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. 06-11172 at 2 (App. Bd. Sep. 4, 2007). In this case, Applicant admitted using cocaine while he held a security clearance.

Applicant objects to the Judge’s statement, under each of the Guidelines, that there was no credible evidence to support Applicant’s statement as it related to each of the Guidelines. Applicant’s statement regarding his present drug-free lifestyle and his explanation of his failure to provide certain information on his security clearance applications were relevant and material evidence. However, Applicant’s statement were not binding and conclusive on the Judge. Rather, the Judge had to consider Applicant’s statement in light of the record evidence as a whole. See, e.g., ISCR Case No. 99-0005 at 3 (App. Bd. Apr. 19, 2000). In this case, Applicant elected to have his case decided upon the written record—a circumstance which deprived the Judge of an opportunity to question Applicant about her concerns and evaluate his credibility in the context of a hearing. In response to the government’s File of Relevant Material (FORM), Applicant did not submit any documentary evidence or witness statements, other than his own statement. The Judge did not find Applicant’s statement credible. Applicant has not met his burden of demonstrating that the Judge erred in concluding that the government’s security concerns had not been mitigated. Even if she had found some evidence of mitigation, that alone would not 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, 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.

ORDER

The Judge’s adverse security clearance decision is AFFIRMED.

Signed: Jeffrey D. Billett Jeffrey D. Billett 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