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ISCR Case 08-11194.a1 — CASE

ISCR Case 08-11194.a1denied

Case Headnote

ISCR Case No. 08-11194.a1

Aug 6, 2009· Hon. Michael Y. Ra'anan· appeal

Summary

A 27-year-old systems administrator for a government contractor was denied a security clearance based on Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The denial stemmed from deliberate omissions and untruthful statements made by the applicant regarding his drug use history.

During the security clearance application process and a subsequent interview, the applicant denied any history of drug use. However, evidence presented contradicted these statements, indicating a history of drug involvement. The judge determined that the applicant's denials were intentionally false.

The judge concluded that the applicant's untruthfulness and deliberate misrepresentations concerning his drug use history made granting a security clearance inconsistent with national security interests, leading to the denial.

Conditions Referenced

Disqualifying

AG ¶ 25raisedDrug Involvement
AG ¶ 15raisedPersonal Conduct

Key Rule Quoted

“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 6, 2009
Answer filed—
Hearing heldJun 23, 2009
Decision dateAug 6, 2009

Cite For

Deliberate Omissions Regarding Drug Use Under Guideline H
Importance of Truthful Disclosures in Security Clearance Applications
National Security Interests in 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 a denial of a security clearance based on the Applicant's drug use and personal conduct. The Applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMark Harvey — denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge's adverse security clearance decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's conclusion that the Applicant's denials of drug use were deliberate and that the decision was sustainable based on the evidence presented.

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 H; Guideline E DIGEST: Applicant denied drug use on his security clearance application and during a subsequent interview. The Judge concluded that these denials were deliberate. Given record evidence as to the extent of Applicant’s drug use, this conclusion is sustainable. Adverse decision affirmed. CASE NO: 08-11194.a1 DATE: 08/06/2009 DATE: August 6, 2009 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-11194

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 March 6, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline H (Drug Involvement) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On June 23, 2009, after the hearing,

FOOTNOTES

1 The Judge’s favorable findings under SOR subparagraphs 1(b-c) and 2(b-c) and (e) are not at issue in this appeal. Administrative Judge Mark Harvey denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. We construe Applicant’s brief as raising the following issue on appeal: whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law.1 Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is a 27 year-old systems administrator for a government contractor. He previously held defense-related employment, receiving a security clearance in 2003. Applicant began using marijuana at the age of 16 and continued to do so, on a monthly basis, until October 2008. He used cocaine in 2006 or 2007. On the security clearance application (SCA) which Applicant filled out in March 2008, he was asked if he had engaged in illegal drug use during the previous seven years and whether he had ever engaged in illegal drug use while holding a security clearance. The following August, Applicant was interviewed by an Office of Personnel Management (OPM) official who was conducting his background investigation. Applicant told the investigator that he had never illegally used controlled substances during the previous seven years and that he had never illegally used controlled substances while holding a security clearance. Applicant’s answers on the SCA and to the OPM investigator were not true. In the Analysis portion of the decision, the Judge concluded that Applicant’s omissions were deliberate, based upon the totality of the record evidence. See ISCR Case No. 07-03307 at 5 (App. Bd. Sep. 26, 2008). Given record evidence as to the extent of Applicant’s drug use and the clarity of the questions at issue here, the Judge’s conclusion is sustainable. 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 national security to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 16. 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 adverse security clearance decision 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