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ISCR 11-08714.a1: Guideline E security clearance appeal, denied (2013) · CASE

ISCR Case 11-08714.a1denied

Case headnote

ISCR Case No. 11-08714.a1

Mar 21, 2013· Hon. Jeffrey D. Billett· appeal

Summary

A government contractor, with prior military service, was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The applicant's history of marijuana use, spanning from 1994 to 2007, included periods while holding a security clearance.

Crucially, the applicant made deliberate falsifications on multiple security clearance applications concerning her drug use. These false statements were identified as disqualifying conditions under Guideline E (E2.A5.1.2 and E2.A5.1.3).

While a mitigating condition (E2.A5.2.1) was considered, the judge ultimately concluded that the applicant's deliberate false statements raised significant security concerns that were not sufficiently mitigated. Despite claims of rehabilitation, there was insufficient evidence to establish trustworthiness, leading to the denial of the security clearance.

Conditions referenced

Disqualifying

E2.A5.1.2raisedDeliberate Omission of Information From Security Clearance Applications
E2.A5.1.3raisedCriminal Conduct or Drug Involvement

Mitigating

E2.A5.2.1rejectedThe Applicant Has Shown Evidence of RehabilitationThe judge found insufficient time for the applicant to demonstrate trustworthiness.

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 issuedOct 15, 2012
Answer filed—
Hearing heldJan 28, 2013
Decision dateMar 21, 2013

Cite for

Serious Security Concerns Related to Drug Involvement Under Guideline H
Deliberate Falsifications on Security Clearance Applications Under Guideline E
Insufficient Evidence of Rehabilitation and Trustworthiness in Security Clearance Determinations

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 who was denied a security clearance due to concerns under Guideline H (Drug Involvement) and Guideline E (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 belowJoan Caton Anthony 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
Applicant argued that the Judge's adverse Decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the Judge followed required procedures. The Board concluded that the adverse decision was not arbitrary or capricious.

Standard of review applied

No new evidence on appealNo de-novo re-decisionSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural compliance

Appeal Board panel

Michael Y. Ra’anan (Chair)
Jeffrey D. Billett
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’s ability to argue for an alternative interpretation of the evidence was not sufficient to establish error. The Appeal Board cannot consider new evidence on appeal. Adverse decision affirmed. CASE NO: 11-08714.a1 DATE: 03/21/2013 DATE: March 21, 2013 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-08714

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On October 15, 2012, DoD 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 January 28, 2013, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Joan Caton Anthony 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 Decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guideline H are not at issue in this appeal. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant is employed as a Government contractor. She served in the Reserves of a branch of the U.S. armed forces from 1998 to 2006. She was first awarded a clearance in 2002 and held secret and top secret clearances until 2010. Applicant began using marijuana while in high school. She used marijuana about three times a week, from 1994 until 2007. She used marijuana while holding a clearance and while holding eligibility for sensitive compartmented information (SCI). In addition, she used ecstasy twice, in 2002 or 2003. In 2002, Applicant completed a security clearance application (SCA). She failed to list her marijuana use from 1994 until the date of completion. This was a deliberate falsification. In 2004, she completed another SCA. She failed to disclose her marijuana use and her use of ecstasy, which were deliberate falsifications. In 2007, she completed yet another SCA. She failed to disclose her uses of marijuana and ecstasy. She also failed to disclose that she had used illegal drugs while possessing a security clearance. These were deliberate falsifications. In 2010, Applicant was interviewed by investigators from another Governmental agency concerning her use of illegal drugs while holding a clearance. In the first of these interviews, Applicant did not acknowledge her drug involvement. In a subsequent interview, she stated that she had used marijuana from 1994 until 2003 and that marijuana was the only drug she had used. In yet another interview, she admitted having used ecstasy once. After further questioning, she admitted having used ecstasy twice and having used marijuana until 2007. In the Analysis, the Judge cleared Applicant of the Guideline H security concerns. However, she concluded that Applicant’s false statements and omissions to her SCAs raised security concerns that she had failed to mitigate. She noted that these false statements were uncovered by skillful interrogators, without whom Applicant might never have disclosed her misconduct. The Judge stated that, due in part to Applicant’s false statements, the Government was induced to grant her access to classified information, which might not have been the case had the true circumstances been known. In addition, Applicant’s falsifications made her vulnerable to exploitation. Although Applicant has shown remorse, the Judge concluded that there had been insufficient time for her to demonstrate trustworthiness, given the serious and protracted nature of her security significant conduct.

DISCUSSION

Applicant cites to evidence that she no longer uses illegal drugs, arguing that, as a consequence, she no longer has a motive to provide false information. She also argues that the lapse of time since her last incident of misconduct shows that she can abide by rules and regulations. However, her ability to argue for a different interpretation of the evidence is not sufficient to demonstrate error. See, e.g., ISCR Case No. 10-07127 at 3 (App. Bd. Dec. 19, 2012). Applicant’s SOR admissions and the evidence adduced at the hearing, including the circumstances of the 2010 interviews, support the Judge’s finding that Applicant’s false statements were both serious and extensive. This evidence supports the Judge’s conclusion that too little time has elapse to demonstrate rehabilitation. Attached to Applicant’s brief is a document dated after the Judge’s Decision. We cannot consider new evidence on appeal. Directive ¶ E3.1.29. The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The 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 Decision 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board