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ISCR Case 10-02475.a1 — CASE

ISCR Case 10-02475.a1denied

Case Headnote

ISCR Case No. 10-02475.a1

Aug 15, 2011· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The denial stemmed primarily from his admitted marijuana use and the falsification of his security clearance application.

The applicant did not dispute the adverse findings concerning the falsification of his application. His admissions regarding marijuana use were a significant factor in the initial denial decision.

The appeal board subsequently affirmed the denial, concluding that the judge's decision was consistent with both the applicant's admissions and the evidence on record regarding his drug involvement. The denial was upheld based on these two disqualifying conditions.

Conditions Referenced

Disqualifying

AG HraisedDrug Involvement
AG EraisedPersonal Conduct

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 27, 2010
Answer filed—Applicant requested a decision on the administrative record.
Hearing heldApr 29, 2011Decision made by Administrative Judge Juan J. Rivera.
Decision dateAug 15, 2011Appeal affirmed by the board.

Cite For

Affirmation of Denial Based on Marijuana Use Under Guideline H
Consideration of Falsification of a Security Clearance Application Under Guideline E
Standard for Granting 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 a challenge to the denial of a security clearance based on marijuana use. The applicant contested specific passages in the Judge's decision but did not challenge the overall adverse findings. The Board affirmed the Judge's decision, finding no harmful error in the challenged passages.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJuan J. Rivera — denied the clearance

Decided onthe written record

Guidelines belowGuideline HGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant challenged five passages of the Judge's decision regarding his marijuana use.

Why the Board ruled this way

The Board found that the Judge's findings were consistent with the evidence and that the challenged passages were reasonable characterizations of the record. The Judge's decision was sustainable and clearly consistent with national security interests.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
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

SYNOPSIS

KEYWORD: Guideline H; Guideline E DIGEST: Applicant challenges five passages of the Judge’s decision regarding his marijuana use. The challenged language is reasonably consistent with Applicant’s admissions regarding his marijuana use and is a reasonable characterization of the record evidence. Adverse decision affirmed. CASENO: 10-02475.a1 DATE: 08/15/2011 DATE: August 15, 2011 In Re: -------------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-02475

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT J. A. Nagel, Esq., Department Counsel FOR APPLICANT Pro se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On September 27, 2010, 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 decision on the administrative record. On April 29, 2011, after the considering the record, 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 findings of fact. Consistent with the following discussion, we affirm. Applicant does not challenge the Judge’s adverse findings and conclusions regarding Applicant’s 2008 falsification of a security clearance application. He does challenge five passages from the Judge’s decision regarding his marijuana use. Three of the five challenged passages are from the synopsis at the beginning of the decision. It is well settled that, absent unusual circumstances, any errors in the synopsis are unlikely to be harmful. See, e.g., ADP Case No. 07-01610 at 2 (App. Bd. Mar. 7, 2008), ISCR Case No. 06-23384 at 2 (App. Bd. Nov 23, 2007) and ISCR Case No. 06-03606 at 2 (App. Bd. May 23, 2007). Furthermore, in this case, the challenged language is reasonably consistent with Applicant’s admissions regarding his marijuana use in his response to the SOR. One of the remaining challenges relies on new evidence which Applicant submits on appeal. The Board cannot consider new evidence. Directive ¶ E3.1.29. The final passage that is challenged is a reasonable characterization of the record evidence regarding Applicant’s history of marijuana use. Applicant has failed to demonstrate error by the Judge. After reviewing the record, the Board concludes that 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 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). Therefore, the Judge’s unfavorable security clearance 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board