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ISCR Case 15-07110.a1 — CASE

ISCR Case 15-07110.a1denied

Case Headnote

ISCR Case No. 15-07110.a1

Jun 9, 2017· Hon. James E. Moody· appeal

Summary

A security clearance applicant, representing himself, was denied clearance under Guideline H (Drug Involvement). The appeal board affirmed this denial, citing the applicant's failure to provide sufficient mitigating evidence.

The applicant was adequately notified of his rights and the opportunity to submit evidence to address the concerns raised under Guideline H. However, he did not present enough information to mitigate these issues.

Ultimately, the applicant did not meet the burden of persuasion required for clearance approval, leading to the denial of his security clearance.

Conditions Referenced

Disqualifying

HraisedDrug Involvement

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 issuedMay 6, 2016
Answer filed—Applicant requested a decision on the written record.
Hearing heldMar 20, 2017Decision made by Administrative Judge Eric H. Borgstrom.
Decision dateJun 9, 2017Appeal board decision affirmed the denial.

Cite For

Adequate Notice of Rights to Submit Mitigating Evidence Under Guideline H
Burden of Persuasion Rests with the Applicant
Clearance May Only Be Granted When 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 was regarding the denial of a security clearance based on drug involvement under Guideline H. The Applicant argued he was denied due process by not being allowed to submit a statement of intent not to abuse drugs. The Board affirmed the Administrative Judge's decision, finding no harmful error in the process.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEric H. Borgstrom — denied the clearance

Decided onthe written record

Guidelines belowGuideline H

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant argued he was denied due process because he was not given the opportunity to submit a statement of intent not to abuse drugs in the future.

Why the Board ruled this way

The Board found that the Applicant was not denied adequate notice of his rights to submit mitigating evidence and that the Judge's conclusion was sustainable on the record.

Standard of review applied

No de-novo re-decisionNo new evidence on appealBurden of persuasion

Appeal Board panel

James E. Moody
James F. Duffy
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 DIGEST: On this record, Applicant was not denied adequate notice of his rights to submit mitigating evidence under the Directive. Adverse decision affirmed. CASENO: 15-07110.a1 DATE: 06/09/2017 DATE: June 9, 2017 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-07110

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 May 6, 2016, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline H (Drug Involvement) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On March 20, 2017, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Eric H. Borgstrom denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. On appeal, Applicant argues that he was denied due process because he “was not given the opportunity to submit” a statement of intent not to abuse drugs in the future. Applicant’s argument lacks merit. The record shows that Department Counsel advised Applicant that he had 30 days from receipt of the government’s File of Relevant Material (FORM) to submit documents “setting forth objections, rebuttal, extenuation, mitigation, or explanation, as appropriate.” Applicant’s copy of the FORM was accompanied by a DOHA cover letter, which advised Applicant of his right to submit objections “or any additional information you wish to be considered.” DOHA Letter, dated June 20, 2016. The DOHA official enclosed a copy of the Directive, which explains an applicant’s rights in detail, and he advised Applicant how he could access the Directive on line. The enclosed Directive informed Applicant that a statement of intent not to abuse drugs in the future was evidence that a Judge could consider in evaluating an applicant’s case in mitigation. See Directive, Enclosure 2, ¶ 26(b).1 Applicant responded to the FORM by providing two documentary exhibits, which were forwarded by Department Counsel to the Judge without objection. Applicant was not denied adequate notice of his rights to submit mitigating evidence under the Directive. See, e.g., ISCR Case No. 15-00092 at 2 (App. Bd. Apr. 8, 2016). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. It is an applicant’s job to present evidence sufficient to mitigate the concerns raised in his or her case, and the applicant bears the ultimate burden of persuasion that he or she should be granted a clearance. Directive ¶ E3.1.15. The Judge’s conclusion that Applicant had not met his burden of persuasion 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board

FOOTNOTES

1 Applicant also received a copy of the Directive along with the SOR.