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ISCR 07-04390.a1: Guideline H security clearance appeal, denied (2008) · CASE

ISCR Case 07-04390.a1denied

Case headnote

ISCR Case No. 07-04390.a1

Jul 8, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, represented by counsel, was denied a security clearance under Guideline H (Drug Involvement) and Guideline J (Criminal Conduct) due to two drug-related convictions. The first conviction occurred in 1988, and the second in 2005.

The judge specifically cited Disqualifying Conditions AG ¶ 24 and AG ¶ 25. A key factor in the denial was the judge's finding that the applicant's explanations for these drug-related incidents were not credible.

Ultimately, the judge concluded that the applicant failed to meet the burden of persuasion required for a security clearance, leading to an unfavorable decision that was subsequently affirmed on appeal. The security clearance was therefore denied.

Conditions referenced

Disqualifying

AG ¶ 24raisedCriminal Conduct
AG ¶ 25raisedDrug Involvement

Key rule quoted

“The presence of some mitigating evidence does not compel a favorable overall security clearance decision.”
ISCR Case No. 05-03452 at 3 (App. Bd. Jul 3, 2007)

Procedural posture

SOR issuedOct 16, 2007
Answer filed—
Hearing heldFeb 26, 2008
Decision dateJul 8, 2008

Cite for

Credibility Assessments in Security Clearance Cases
Impact of Drug-related Convictions on Security Clearance Eligibility
The Burden of Persuasion in Security Clearance Decisions

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 drug-related offenses. The applicant argued that he had mitigated the security concerns. The Board affirmed the Administrative Judge's decision, finding no error in the Judge's conclusions regarding the applicant's credibility and the lack of sufficient mitigation.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMichael H. Leonard denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline J

What the Board reviewed

Mitigation wrongly applied / not applied, raised by the applicantRejected
Applicant argued that the Judge erred in failing to conclude that he had mitigated the security concerns in his case.

Why the Board ruled this way

The Board found no error in the Judge's conclusions regarding the Applicant's failure to mitigate security concerns related to drug involvement and criminal conduct. The Judge's findings were supported by substantial evidence and were not arbitrary or capricious.

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 Y. Ra’anan (Chair)
Michael D. Hipple
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 H; Guideline J DIGEST: Applicant was convicted of drug related offenses, seventeen years apart. The record supports the Judge’s unfavorable conclusions. Adverse decision affirmed. CASENO: 07-04390.a1 DATE: 07/08/2008 DATE: July 8, 2008 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-04390

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT D. Michael Lyles, Esq., Department Counsel FOR APPLICANT E. Shane Hollaway, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On October 16, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline H (Drug Involvement) and Government Exhibit 2 includes a summary of Applicant’s Personal Subject Interview, Dec. 11, 2006. According to this document, at the time of the 2005 incident, Applicant was the president of a local community center. He had obtained the assistance of work-release inmates for work at the center. During the trip back to the county jail at the end of the day, one of the inmates requested that Applicant drive by the inmate’s house to obtain some headache medicine. Applicant drove to the specified address and the inmate went to the house. Applicant stated that, while parked there, he realized that the house was actually an abandoned one. Neighbors observed the activity and alerted the police, who stopped Applicant’s vehicle. Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 26, 2008, after the hearing, Administrative Judge Michael H. Leonard denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge erred in failing to conclude that Applicant had mitigated the security concerns in his case. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant was arrested, charged, and convicted of drug related offenses. The first, in 1988, arose when he was stopped by police at a drunk-driving checkpoint. When Applicant admitted to the police that he had been drinking, they searched his car and found a marijuana cigarette butt in the ashtray. The second, in 2005, occurred when Applicant was transporting county inmates back to jail after they had worked at a local community center on a work release program. Police stopped them and, upon searching Applicant’s car, discovered drug use paraphernalia. In the Analysis section of the decision, the Judge reported Applicant’s explanation for these incidents. Applicant stated that, in both cases, the contraband was not his, but had been placed in his car by another person. In analyzing the case, the Judge stated that Applicant’s explanations were not credible. “It is simply too difficult to believe that Applicant, a security clearance holder since about 1983, had such bad luck, not once, but twice . . . [I]tis highly improbable that Applicant could be the victim of accidental circumstances on two occasions that resulted in drug-related charges and convictions.” Decision at 5. The Board has considered Applicant’s brief, the Judge’s decision, and the record. The Judge properly concluded that Applicant’s case raised security concerns under Guidelines H and J. Furthermore, the Judge drew a “rational connection between the facts found” and his conclusion that neither the Guidelines H and J mitigating conditions nor the whole-person factors support a decision favorable to Applicant. See Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The Judge’s decision reflects that he considered the entire record, including the evidence favorable to Applicant. However, the presence of some mitigating evidence does not compel a favorable overall security clearance decision. See, e. g., ISCR Case No. 05-03452 at 3 (App. Bd. Jul 3, 2007). The record supports the Judge’s conclusion that Applicant has failed to meet his burden of persuasion that it is “clearly consistent with the interests of the national security” for him to have a clearance. See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed; Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board