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ISCR 15-02854.a1: Guideline E security clearance appeal, denied (2016) · CASE

ISCR Case 15-02854.a1denied

Case headnote

ISCR Case No. 15-02854.a1

Nov 22, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance was denied for an applicant, a former military member, under Guidelines E (Personal Conduct), H (Drug Involvement), and J (Criminal Conduct). The denial stemmed from credibility issues surrounding his claim of unknowing marijuana ingestion and a documented history of drug use while previously holding a clearance.

The judge found the applicant's testimony regarding unknowing ingestion lacked sufficient corroboration. This, combined with a prior positive drug test and other misconduct, led to the conclusion that the applicant demonstrated poor judgment. Furthermore, the applicant failed to acknowledge his misconduct or provide evidence that such behavior was unlikely to recur.

The appeal board affirmed the denial, emphasizing that national security considerations are paramount in security clearance determinations. The decision highlighted the applicant's lack of credibility and his history of drug involvement and criminal conduct as disqualifying factors.

Conditions referenced

Disqualifying

AG ¶ 25raisedDrug Involvement
AG ¶ 32raisedCriminal Conduct
AG ¶ 16raisedPersonal 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 issuedDec 11, 2015
Answer filed—
Hearing heldAug 26, 2016
Decision dateNov 22, 2016

Cite for

Credibility Determinations in Security Clearance Cases
Impact of Drug Use on Security Clearance Eligibility
Importance of Corroboration in Applicant Testimony

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 challenging the denial of his security clearance based on credibility issues regarding his claim of unknowing marijuana ingestion. The Board affirmed the Administrative Judge's decision, finding no harmful error in the Judge's credibility determination and analysis of the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJennifer I. Goldstein denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline JGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant challenged the Judge's determination that his testimony about unknowing ingestion lacked credibility.

Why the Board ruled this way

The Board found no reason to reject the Judge's credibility determination regarding the Applicant's testimony about unknowing ingestion of marijuana, affirming the adverse decision based on substantial evidence and procedural compliance.

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 Ra’anan (Chair)
James E. Moody
James F. Duffy

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; GuidelineJ; Guideline E DIGEST: Applicant challenges the Judge’s determination that his testimony about unknowing ingestion lacked credibility. We are required to give deference to a Judge’s credibility determination. The Judge’s conclusion was founded upon a lack of corroboration and upon the apparent recency of Applicant’s claim. We note that Applicant does not deny the accuracy of the drug test at issue here, implicitly conceding the presence of marijuana in his system. We find no reason to reject the Judge’s credibility determination. Adverse decision affirmed. CASENO: 15-02854.a1 DATE: 11/22/2016 DATE: November 22, 2016 In Re: --------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-02854

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 December 11, 2015, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline H (Drug Involvement), Guideline J (Criminal Conduct), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On August 26, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Jennifer I. Goldstein 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. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant served in the military from 2004 through 2009 and in the reserves from 2009 until 2014. He achieved the grade of E-5. Applicant used marijuana with varying frequency from 1999 through mid-2013, which included use while holding a clearance. While in the military, Applicant was charged twice under Article 15, UCMJ, for underage consumption of alcohol. Later, he was fired from a civilian job due to wrongful behavior toward a client. This conduct involved Applicant pushing another person. In 2013, while in the Reserves, Applicant was selected for a random urinalysis, which came back positive for marijuana. As a consequence, Applicant was administratively discharged from the Reserves, receiving a General Discharge. At the hearing, Applicant claimed, for the first time, that this positive urinalysis “must have” resulted from unknowing ingestion. Decision at 3. Applicant no longer associates with the person who hosted the party. While in the military, he received numerous medals and awards. The Judge’s Analysis In holding against Applicant under all three Guidelines, the Judge stated that she found his claim of unknowing ingestion to be lacking credibility. She noted that he had provided no corroboration for this claim. She also stated that Applicant’s marijuana use while in the military was in contravention of official policy forbidding such conduct and that Applicant’s poor judgment was further demonstrated by drug use while holding a clearance. The Judge stated that Applicant had failed to acknowledge his misconduct and that he produced insufficient evidence that such behavior is unlikely to recur. Though citing to Applicant’s military service, she reiterated her conclusion that his claim of unknowing ingestion of marijuana was not believable.

DISCUSSION

Applicant challenges the Judge’s determination that his testimony about unknowing ingestion was lacking in credibility. We are required to give deference to a Judge’s credibility determination. Directive ¶ E3.1.32.1. In this case, the Judge’s conclusion was founded upon a lack of corroboration and upon the apparent recency of Applicant’s claim. We also note that Applicant’s argument does not deny the accuracy of the drug test at issue here, implicitly conceding the presence of marijuana in his system. All in all, we find no reason to reject the Judge’s credibility determination. Applicant cites to evidence that he has stopped associating with the person who threw the party where his marijuana ingestion apparently occurred. He also notes that he has held a clearance for many years without incident or concern and that he has had other urinalyses that were negative. The Judge made findings about Applicant’s evidence and discussed it in her analysis. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 14-05795 at 2 (App. Bd. Apr. 26, 2016). Applicant notes that he was not represented at the hearing by a lawyer. He requests an opportunity to present witnesses and other evidence that he believes would be favorable to him. However, prior to the hearing, Applicant received detailed guidance from the Chief Administrative Judge that explained his rights at the hearing, including his right to counsel. Applicant also received a copy of the Directive along with the SOR. The Directive describes an applicant’s hearing rights as well. Applicant was provided with sufficient notice of his right to counsel. Moreover, we have no authority to remand a case for the purpose of taking in new evidence. See, e.g., ISCR Case No. 14-00976 at 3 (App. Bd. Feb. 5, 2015). 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 Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board