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ISCR Case ISCR Case No. 08-10008 — CASE

ISCR Case ISCR Case No. 08-10008denied

Case Headnote

ISCR Case No. ISCR Case No. 08-10008

Dec 29, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance primarily under Guideline H (Drug Involvement) and Guideline J (Criminal Conduct). The denial stemmed from the applicant's knowing and deliberate history of methamphetamine use.

A significant factor was a felony charge for drug possession, which occurred after the applicant attempted to receive methamphetamine through the mail. The applicant's personal belief that he did not have a drug problem, coupled with his disregard for his wife's advice regarding his drug use, further contributed to the security concerns.

The appeal board affirmed the denial, concluding that the judge's findings and application of mitigating conditions were free of harmful errors. The applicant's history of drug involvement and associated criminal conduct ultimately led to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 25raisedCriminal Conduct
AG ¶ 24raisedDrug 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 issuedMar 12, 2009
Answer filed—
Hearing heldSep 25, 2009
Decision dateDec 29, 2009

Cite For

Affirmation of Denial Based on Drug Involvement Under Guideline H
Affirmation of Denial Based on Criminal Conduct Under Guideline J
Standards for Granting Security Clearance Related to National Security Interests

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 J (Criminal Conduct) and Guideline H (Drug Involvement). The applicant raised several issues regarding the Judge's findings and application of mitigating conditions. The Board found no harmful errors 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 HGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant alleged errors in the Judge’s findings of fact.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argued the Judge erred in his application of the Guidelines H and J mitigating conditions.
Whole-person analysis — raised by the applicantRejected
Applicant contended the Judge erred in his whole person analysis.

Why the Board ruled this way

The Board found no harmful error in the Judge's findings or conclusions, affirming the decision based on a reasonable analysis of the evidence and the application of the relevant guidelines.

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
Michael D. Hipple
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

APPEARANCES

DATE: December 29, 2009 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-10008

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Eric Borgstrom, Esq., Department Counsel FOR APPLICANT Kathleen E. Voelker, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On March 12, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline J (Criminal Conduct) and Guideline H (Drug Involvement) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 25, 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. The Judge’s finding in Applicant’s favor under SOR allegation 1.bis not at issue in this appeal. Applicant raised the following issues on appeal: whether the Judge made harmful errors in his findings of fact; whether the Judge erred in his application of the Guidelines H and J mitigating conditions; and whether the Judge erred in his whole person analysis. Finding no harmful error, we affirm. The Judge made the following pertinent findings of fact: Applicant used methamphetamine ten times between May 2005 and January 2007. His use was knowing and deliberate. In 2007 he mailed $200 to his brother in another state and asked him to mail Applicant some methamphetamine. His brother mailed him 1.9 grams of methamphetamine. The shipment was discovered by law enforcement personnel. Applicant was charged with a felony. Later that year he pled guilty to an amended charge of illegal possession methamphetamine. He was sentenced to 24 months probation with deferred judgment (in part). Applicant’s wife discouraged his use of methamphetamine but he disregarded her advice because he believed he did not have a drug problem, would not get addicted and would not get caught. On appeal, Applicant alleges errors in the Judge’s findings of fact. None of the alleged errors are outcome determinative. Therefore, none of them would be harmful even if the Board agreed with Applicant’s assertions. The Judge’s discussion of the mitigating conditions and the whole person concept reflect a reasonable analysis of the sustainable findings of security concern and the Board sees no reason to disturb them. 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 12. “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).

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: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board