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ISCR Case 10-02982.a1 — CASE

ISCR Case 10-02982.a1denied

Case Headnote

ISCR Case No. 10-02982.a1

Jan 6, 2012· Hon. Michael Y. Ra'anan· appeal

Summary

A 33-year-old systems and test engineer was denied a security clearance primarily due to concerns under Guideline E (Personal Conduct), despite favorable findings regarding Guideline H (Drug Involvement). The denial stemmed from the applicant's deliberate falsifications made during the security clearance process.

Specifically, the judge determined that the applicant's false statements were significant, demonstrating questionable judgment and dishonesty. While mitigating conditions related to personal conduct were considered, the disqualifying condition of deliberate misrepresentation during the clearance process ultimately led to the adverse decision.

The judge concluded that these deliberate falsifications severely undermined the applicant's trustworthiness, resulting in the denial of the security clearance.

Conditions Referenced

Disqualifying

E2.A5.2.1raisedDeliberate Omission, Concealment, or Falsification of Relevant Facts From Any Personnel Security Questionnaire or Interview.

Mitigating

E2.A5.2.2rejectedThe Individual Has Acknowledged Wrongdoing and Has Taken Steps to Correct the Situation.The judge was not persuaded that the applicant's evidence of rehabilitation outweighed the deliberate falsifications.
E2.A5.2.3rejectedThe Individual Has Demonstrated Good Conduct, Judgment, and Reliability.The judge found that the applicant's good character and job performance did not mitigate the security concerns.

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 issuedFeb 10, 2011
Answer filed—
Hearing heldSep 19, 2011
Decision dateJan 6, 2012

Cite For

Deliberate Falsifications as a Significant Factor in Security Clearance Denial Under Guideline E
The Importance of Trustworthiness in Security Clearance Evaluations
The Standard for Granting Clearance Being Consistent with 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 H (Drug Involvement) and Guideline E (Personal Conduct). The applicant argued that the Judge erred in applying mitigating conditions and in the whole-person analysis. The Board affirmed the Judge's decision, finding no harmful error in the denial of the security clearance.

Appealed bythe applicant

Applicant representationAttorney

Judge belowThomas M. Crean — denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge erred in his application of the mitigating conditions.
Whole-person analysis — raised by the applicantRejected
The Judge's whole-person analysis was erroneous.

Why the Board ruled this way

The Judge's findings were supported by substantial evidence, and the adverse decision was not arbitrary or capricious. The Judge properly weighed the evidence and articulated a rational connection between the facts and the decision made.

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: The Judge discussed Applicant’s mitigating evidence and was not persuaded that it outweighed the deliberate falsifications. Adverse decision affirmed. CASENO: 10-02982.a1 DATE: 01/06/2012 DATE: January 6, 2012 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-02982

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Richard A. Stevens, Esq., Department Counsel FOR APPLICANT E. Patrick Hill, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On February 10, 2011, 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 September 19, 2011, after the hearing, Administrative Judge Thomas M. Crean denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge erred in his application of the mitigating conditions and whether the Judge’s whole-person analysis was erroneous. The Judge’s favorable findings under Guideline H are not at issue in this appeal. Consistent with the following, we affirm the decision. The Judge made the following pertinent findings of fact: Applicant is a 33-year-old systems and test engineer for a Defense contractor. He has a bachelor’s degree in engineering and has held a security clearance since 2004. In 2009, Applicant was apprehended for possession of illegal drugs. The drug possession was discovered as a result of a lawful search of Applicant’s car as he was entering a military installation for work. The drug in question was Oxycontin, a narcotic pain reliever, which Applicant had been taking since the summer of 2008. Lacking a prescription, he was obtaining the drug illegally from a friend. He was entered into a pretrial diversion program, which he completed in late 2010. Applicant has weaned himself from Oxycontin and no longer associates with those who illegally use drugs. When he completed his security clearance application (SCA) in late 2009, Applicant denied any illegal drug use. During a subsequent interview in 2010, Applicant falsely stated that the Oxycontin had belonged to his grandmother and that he had intended to dispose of it but forgot that it was in his possession. In response to DOHA interrogatories propounded to him later in 2010, Applicant admitted that the Oxycontin had been his. He acknowledged his drug use and his false answers, both on the SCA and to the interviewer. Applicant enjoys an excellent reputation for trustworthiness, professionalism, and security worthiness. Applicant’s uncle testified that Applicant has shown substantial improvement in conduct since giving up the illegal use of drugs. In the Analysis portion of the Decision, the Judge concluded that Applicant had mitigated the Guideline H security concerns. However, he concluded that Applicant’s false statements during the security clearance process were recent and significant. The Judge noted that Applicant had provided false information on two separate occasions, characterizing the misconduct as “a strong indication of his questionable judgment, lack of candor, dishonesty, and unwillingness to comply with rules and regulations.” Decision at 10. In pressing his appeal, Applicant cites to record evidence of his successful effort to break his drug habit, which he argues was at the root of his falsifications. He also cites to his evidence of good character and of good job performance, contending that the evidence, viewed as a whole, is sufficient to mitigate the Guideline E security concerns raised in the SOR. The Judge explicitly noted Applicant’s mitigating evidence, but he was not persuaded that this evidence outweighed Applicant’s deliberate falsifications. Applicant’s brief in essence argues for an alternative interpretation of the record evidence, which is not sufficient to demonstrate error. See, e.g., ISCR Case No. 06-10859 at 4 (App. Bd. Sep. 2, 2010). The record supports a conclusion 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,’” both as to the mitigating conditions and the whole-person factors. 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 adverse decision is sustainable on this record. “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). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor 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 Chairperson, 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