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ISCR Case 15-07644.a1 — CASE

ISCR Case 15-07644.a1denied

Case Headnote

ISCR Case No. 15-07644.a1

Sep 12, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance due to concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The denial stemmed from the applicant's extensive history of substance abuse, specifically involving heroin and marijuana.

Further complicating the application was the applicant's lack of candor. She falsified her security clearance application by failing to disclose her marijuana use and misrepresenting her counseling status. These omissions and misrepresentations were significant factors in the decision.

Despite some evidence of sobriety, the board determined that the applicant's ongoing issues with substance use and, critically, her lack of candor, presented unmitigated concerns regarding her trustworthiness and reliability. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

HraisedDrug Involvement
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 issuedJun 14, 2016
Answer filed—
Hearing heldJun 16, 2017
Decision dateSep 12, 2017

Cite For

Denial Based on History of Substance Abuse Under Guideline H
Falsification of Security Clearance Application Under Guideline E
Importance of Candor in Security Clearance Evaluations

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's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the analysis of the evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowFrancisco Mendez — 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 decision was supported by substantial evidence and that the applicant did not demonstrate that the Judge's findings were arbitrary, capricious, or contrary to law.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference 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; Guideline E DIGEST: Applicant cites to favorable evidence, such as her five years of sobriety, her employment record, and her letters of reference. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record, nor has she shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Adverse decision affirmed. CASENO: 15-07644.a1 DATE: 09/12/2017 DATE: September 12, 2017 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-07644

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On June 14, 2016, 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 June 16, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Francisco Mendez 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 From 2007 to 2011, Applicant abused oxycodone and percocet, becoming addicted to opiates. She also purchased and used marijuana. At the time of this conduct, Applicant worked for a Defense contractor that had a policy against the illegal use of controlled substances. By summer of 2011, Applicant began injecting heroin to deaden the pain of her liver disease. She was spending about $100 a day on heroin. Later that year, she entered into a detoxification and substance abuse treatment program. Applicant completed the rehab program. Upon discharge a year later, she was advised to attend a support group such as Narcotics Anonymous (NA) in order to maintain sobriety. She attended NA for about six months but then stopped. Applicant has had no counseling since 2012. Although she stopped using heroin and opiates, she continued to use marijuana. She finally stopped using marijuana after a DWI arrest in October 2012. In 2011, Applicant completed an application for a public trust position, upon which she did not report her illegal drug involvement. In her answer to the SOR, she admitted that she falsified her response, characterizing her omissions as “wrong and dishonest.” Decision at 5. In 2015, Applicant completed a security clearance application (SCA). She reported most of her substance abuse problems, but stated that she stopped using drugs in October 2011, when she entered rehab. She did not disclose her marijuana use in 2012. She denied that this omission was deliberate. She also stated in her SCA that she continued to receive counseling for substance abuse problems and to go to meetings in order to maintain sobriety. She presented no evidence of such counseling, however. The Judge’s Analysis The Judge stated that Applicant made a strong case for mitigation of the Guideline H concerns, citing her five years of sobriety and her good employment record. However, he noted that she had a long history of substance abuse and that she did not continue with counseling. Her falsification of two Federal forms also weighed against a favorable conclusion. Regarding Guideline E, the Judge found that Applicant had deliberately falsified her 2015 SCA. He found her explanation for the omission to be lacking credibility. He also noted another false claim in her SCA, that she had continued to go to counseling. In the whole-person analysis, the Judge noted Applicant’s success in overcoming drug addiction. He found, however, that her lack of candor in reporting her substance abuse history raised unmitigated concerns about her trustworthiness and reliability.

DISCUSSION

Applicant cites to favorable evidence, such as her five years of sobriety, her employment record, and her letters of reference. She also notes that she did disclose some of her drug use in her 2015 SCA, which, she contends, shows that she is trustworthy. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record, nor has she shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 13-00502 at 3 (App. Bd. Mar. 7, 2017). Applicant argues that, if she had possessed an actual intent to deceive, she would have left out all of her drug use in 2015. However, considering the Decision as a whole, we conclude that the Judge’s finding of deliberate omission of marijuana use until late 2012 is supportable. Among other things, the multiple nature of Applicant’s omissions supports the challenged finding. See, e.g., ISCR Case No. 14-02567 at 4-5 (App. Bd. Oct. 5, 2015). The Hearing Office cases that the Judge cites are not sufficient to undermine the Judge’s analysis and conclusions. In any event, Hearing Office case are not binding on other Hearing Office Judges or on the Appeal Board. See, e.g., ISCR Case No. 15-01416 at 3 (App. Bd. Feb. 15, 2017). The Judge examined the relevant evidence 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, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility 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