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ISCR Case 08-00881.a1 — CASE

ISCR Case 08-00881.a1denied

Case Headnote

ISCR Case No. 08-00881.a1

Apr 24, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A 26-year-old systems administrator was denied a security clearance under Guidelines E (Personal Conduct) and J (Criminal Conduct) due to marijuana use and subsequent lack of candor. The applicant used marijuana in 2006 while already holding a security clearance.

Initially, the applicant denied any marijuana use. However, after failing a urinalysis, he admitted to partial use. He further failed to fully disclose the extent of his marijuana use to both his employer and the investigator. These actions were deemed inconsistent with national security interests.

The appeal board affirmed the denial, supporting the judge's findings that the applicant's conduct, specifically the marijuana use while cleared and the failure to fully disclose, warranted the denial of his security clearance.

Conditions Referenced

Disqualifying

AG ¶ 15raisedCriminal Conduct
AG ¶ 14raisedPersonal Conduct

Key Rule Quoted

“It is not clearly consistent with the national interest to grant or continue eligibility for a security clearance for Applicant.”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedJul 31, 2008
Answer filed—
Hearing heldFeb 26, 2009
Decision dateApr 24, 2009

Cite For

Denial Based on Failure to Disclose Drug Use Under Guideline E
Impact of Criminal Conduct on Security Clearance Under Guideline J
Importance of Full Disclosure in Security Clearance Applications

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 marijuana use and failure to fully disclose this use. The applicant argued that the Judge erred in applying the mitigating conditions. The Board found no error and affirmed the denial of the security clearance.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJuan J. Rivera — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline J

What the Board reviewed

Mitigation wrongly applied / not applied — raised by the applicantRejected
The Judge erred in his application of the Guidelines E and J mitigating conditions.

Why the Board ruled this way

The Board found no error in the Judge's application of the mitigating conditions and affirmed the denial of the security clearance based on substantial evidence in the record.

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 E; Guideline J DIGEST: The Judge found that Applicant has held a security clearance 2005. In 2006 he used marijuana. After initially denying marijuana use he admitted a portion of his use subsequent to failing a a urinalysis. He failed to admit the full extent of his use to employer or the investigator. Adverse decision affirmed. CASENO: 08-00881.a1 DATE: 04/24/2009 DATE: April 24, 2009 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-00881

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Charles Jerome Ware, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On July 31, 2008, DOHA issued a statement of reasons (SOR) 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 February 26, 2009, after the hearing, Administrative Judge Juan J. Rivera denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge erred in his application of the Guidelines E and J mitigating conditions. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is a 26-year-old systems administrator for a corporation providing network security for federal agencies. He graduated from college in 2003 and, in early 2004, was hired by a government contractor. In August 2005 he was granted a security clearance. Subsequently, he began working for his current employer. He has held a security clearance continuously since August 2005. Soon after having been hired by his current employer, in August or September of 2006, Applicant smoked marijuana while in a car traveling to a party at the home of a friend. At the same party he smoked marijuana again. Applicant testified that he had smoked marijuana “a couple of times” while in high school. Otherwise, he denied any illegal drug use other than the events of 2006. As part of the hiring process for his current employment, Applicant was required to submit another security clearance application (SCA). In response to Question 24, he answered “no” when asked if he had used illegal drugs since age 16 or within the previous seven years. Applicant knew that he was required to disclose his marijuana use. Also, as part of the hiring process, Applicant submitted a urine sample, which tested positive for marijuana. Although initially denying to his employer that he had used marijuana, he subsequently admitted that he had used it in a car while riding to a friend’s home. During a November 2006 interview with a security clearance investigator, Applicant stated that he had used marijuana once while at a party at a friend’s home. He neglected to admit the full extent of his marijuana use both to his employer and to the investigator. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.’” 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 that “it is not clearly consistent with the national interest to grant or continue eligibility for a security clearance for Applicant” is sustainable on this record. Decision at 9. See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security’”).

ORDER

The Judge’s decision 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