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ISCR 07-07219.a1: Guideline E security clearance appeal, denied (2008) · CASE

ISCR Case 07-07219.a1denied

Case headnote

ISCR Case No. 07-07219.a1

May 16, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

This security clearance application was denied due to concerns under Guideline E (Personal Conduct), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct). The applicant, representing himself, was found to have insufficient mitigating evidence to overcome the disqualifying conditions.

Key issues included two criminal convictions from 1999 for tampering with evidence and marijuana possession. Additionally, a bench warrant was issued for the applicant's arrest in 2005 for failing to pay associated fines.

A significant factor in the denial was the applicant's falsification of a security clearance application in 2006, where he misrepresented his drug use history. The judge determined that the applicant's arguments for mitigation, specifically under AG ¶ 24, did not adequately address the seriousness of the criminal conduct and the deliberate misrepresentation, leading to the denial of the security clearance.

Conditions referenced

Disqualifying

AG ¶ 30raisedCriminal Conduct
AG ¶ 32raisedPersonal Conduct

Mitigating

AG ¶ 24appliedDrug Involvement

Key rule quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”
Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural posture

SOR issuedSep 18, 2007
Answer filed—
Hearing heldFeb 11, 2008
Decision dateMay 16, 2008

Cite for

Sustainable Findings of Criminal Conduct Under Guideline J
Falsification of Security Clearance Application as a Disqualifying Factor Under Guideline E
Mitigating Conditions for Drug Involvement Under Guideline H

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 was from an adverse decision denying the applicant a security clearance based on criminal conduct and falsification of a security clearance application. The applicant argued that the Judge's failure to mitigate security concerns was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRichard A. Cefola denied the clearance

Decided onthe written record

Guidelines belowGuideline JGuideline HGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argued that the Judge's failure to mitigate the Guideline J and E security concerns was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's decision, affirming that the findings were sustainable and that the adverse decision was not arbitrary, capricious, or contrary to law.

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)
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 J; Guideline H; Guideline E DIGEST: The Judge made sustainable findings that Applicant had 1. Two 1999 criminal convictions (one for marijuana possession and one for tampering with evidence) 2. A bench warrant for his arrest in 2005, and 3 falsified a 2006 security clearance application. Adverse decision affirmed. CASENO: 07-07219.a1 DATE: 05/16/2008 DATE: May 16, 2008 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-07219

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On September 18, 2007, DOHA issued a statement of reasons (SOR) advising Applicant The Judge found in favor of Applicant under Guideline H. That favorable finding is not at issue on appeal. As part of his appeal, Applicant offers new evidence in the form of additional explanations about his conduct and circumstances. The Board cannot consider this new evidence on appeal. See Directive ¶ E3.1.29. of the basis for that decision—security concerns raised under Guideline J (Criminal Conduct), Guideline H (Drug Involvement) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested that the case be decided on the written record. On February 11, 2008, after considering the record, Administrative Judge Richard A. Cefola denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s failure to mitigate the Guideline J and E security concerns is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following sustainable findings: In 1999, Applicant pleaded guilty to a charge of tampering with evidence, and paid a fine and court cost of approximately $300. In 1999, he was found guilty of possession of marijuana and drug paraphernalia and fined $500. In 2005 a bench warrant for Applicant’s arrest was issued due to his failure to pay that $500 fine. In 2006, Applicant falsified a Questionnaire for National Security Positions when he stated that he had used marijuana once in August of 1999, when he had in fact used marijuana on a weekly basis from 1993 to 2001 and on a monthly basis from 2001 to 2002.

The Board has examined the Judge’s decision in light of the record as a whole and concludes that the Judge has drawn “a rational connection between the facts found” under Guidelines J and E and his adverse decision. 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 general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). Accordingly, the Judge’s adverse decision is neither arbitrary, capricious, nor contrary to law.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, 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