CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 08-03335.a1 — CASE

ISCR Case 08-03335.a1denied

Case Headnote

ISCR Case No. 08-03335.a1

Nov 24, 2009· Hon. Jeffrey D. Billett· appeal

Summary

A 53-year-old applicant was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The primary issues stemmed from past drug use and misrepresentations made on her security clearance application.

Specifically, the applicant misrepresented her drug use history on the official application. While she demonstrated abstinence from drug use since 2003 or 2004, the judge determined that this, along with other mitigating evidence, was insufficient to resolve the government's concerns under Guideline E.

The judge applied disqualifying condition E2.A5.1.2, related to deliberate misrepresentation, and considered mitigating conditions E2.A5.2.1 and E2.A5.2.3. However, the mitigating evidence did not adequately overcome the security concerns, resulting in the denial of the security clearance.

Conditions Referenced

Disqualifying

E2.A5.1.2raisedPersonal Conduct

Mitigating

E2.A5.2.1rejectedMitigating Conditions for Personal ConductThe judge found the evidence presented in mitigation insufficient to overcome the government's concerns.
E2.A5.2.3appliedMitigating Conditions for Drug InvolvementThe judge found sufficient evidence of abstinence from drug use since 2003 or 2004.

Key Rule Quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”
— Dep’t of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedFeb 9, 2009
Answer filed—
Hearing heldSep 21, 2009
Decision dateNov 24, 2009

Cite For

Insufficient Mitigation of Security Concerns Under Guideline E
Misrepresentation on Security Clearance Application
Weighing of Mitigating Evidence 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 seeking a security clearance after being denied due to concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The applicant argued that the Judge's decision was arbitrary and that the character references were not adequately considered. The Board affirmed the Judge's decision, finding no harmful error and that the Judge's reasoning was sound.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMartin H. Mogul — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline EGuideline H

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge's decision is arbitrary, capricious, or contrary to law.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argues that the Judge did not give adequate weight to the character references she submitted.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision, affirming that the Judge reasonably explained why the evidence in mitigation was insufficient to overcome the government's security concerns under Guideline E. 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-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
Jean E. Smallin

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 H DIGEST: The Judge reasonably explained why the evidence in mitigation was insufficient to overcome the government’s security concerns under Guideline E. Adverse decision affirmed. CASENO: 08-03335.a1 DATE: 11/24/2009 DATE: November 24, 2009 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-03335

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 February 9, 2009, 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 H (Drug Involvement) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as The Judge applied the Directive’s Drug Involvement Mitigating Condition (b)(3): “ a demonstrated intent not to abuse any drugs in the future, such as: . . . an appropriate period of abstinence[.]” See Directive ¶ E2.26 (b)(3). In this case, the Judge specifically stated that he considered the reference letters to be of little weight because none of the writers indicated that they were aware of Applicant’s prior drug use. Decision at 3. amended) (Directive). Applicant requested a hearing. On September 21, 2009, after the hearing, Administrative Judge Martin H. Mogul 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’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Specifically, Applicant contends that the Judge based his decision on his erroneous belief that Applicant still uses illegal drugs. Applicant also argues that the Judge did not give adequate weight to the character references she submitted. Finding no error, we affirm the Judge’s decision. The Judge made the following relevant factual findings: Applicant is 53 years old. Applicant bought and used an illegal substance with varying frequency from approximately 1990 until 2003 or 2004. From 1990 until 2001, her usage was approximately two days per month. Applicant sought counseling in 2001 and underwent treatment for approximately a year. Then in 2003 or 2004, Applicant bought and used the illegal substance once and became sick. In response to a question on her Security Clearance Application, Applicant falsely denied her drug use. Applicant is incorrect in stating that the Judge based his decision on a belief that Applicant continues to use illegal drugs. In fact, the Judge found in Applicant’s favor as to the Guideline H allegations in the SOR, concluding that Applicant’s abstinence since 2003 or 2004 was sufficient to mitigate the government’s concerns as to her drug involvement. Decision at 5. Applicant argues that the Judge did not give adequate weight to the character references she submitted. The Judge stated that he considered Applicant’s five letters of reference. However, 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, 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. 07-05632 at 2 (App. Bd. May 13, 2007). A review of the record indicates that the Judge weighed the mitigating evidence offered by Applicant under Guidelines H and E and considered the possible application of relevant mitigating conditions and factors. The Judge found sufficient evidence of mitigation to rule in Applicant’s favor as to Guideline H, but reasonably explained why the evidence Applicant had presented in mitigation was insufficient to overcome the government’s security concerns under Guideline E. The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 08-01105 at 2-3 (App. Bd. Dec. 15, 2008). The Judge examined the relevant data and articulated a satisfactory explanation for his decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines 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.’” Dep’t of the Navy v. Egan, 484 U.S. 518, 528 (1988). Accordingly, the Judge’s adverse decision is sustainable.

ORDER

The Judge’s decision denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board