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ISCR Case 15-08246.a1 — CASE

ISCR Case 15-08246.a1denied

Case Headnote

ISCR Case No. 15-08246.a1

Nov 16, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance under Guideline B (Foreign Influence) and Guideline E (Personal Conduct). The denial was based on several disqualifying conditions, specifically AG ¶ 16.

Key reasons for the denial included the applicant testing positive for illegal drug use while already holding a security clearance. Additionally, the applicant intentionally provided false information regarding an arrest during a background interview and falsified responses on multiple security clearance applications.

While mitigating conditions under AG ¶ 17(g) were considered, the judge determined they were insufficient to overcome the serious concerns raised by the applicant's past conduct. The decision emphasized that mitigating evidence does not automatically guarantee a favorable outcome, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 16raisedPersonal Conduct

Mitigating

AG ¶ 17(g)rejectedMitigating CircumstancesThe judge found that the applicant's admissions and disclosures did not fully mitigate his past 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 issuedNov 16, 2016
Answer filed—
Hearing heldAug 29, 2017
Decision dateNov 16, 2017

Cite For

Denial Based on Illegal Drug Use Under Guideline E
Importance of Honesty in Security Clearance Applications
Mitigating Evidence Does Not Guarantee a Favorable Outcome

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 a denial of security clearance based on illegal drug use and falsification of information. 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 belowErin C. Hogan — denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's mitigation and whole-person analysis, affirming the decision based on the evidence presented.

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
William S. Fields
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 B; Guideline E DIGEST: The Judge found Applicant tested positive for illegal drug use while possessing a security clearance in 2012, intentionally lied about details of an arrest during a background interview in 2011, and falsified responses to questions in two SCAs in 2011. Adverse decision affirmed. CASENO: 15-08246.a1 DATE: 11/16/2017 DATE: November 16, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-08246

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Shane C. Brengle, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On November 16, 2016, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On August 29, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Erin C. Hogan 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 B are not at issue in this appeal. Consistent with the following, we affirm. The Judge found against Applicant on allegations that he tested positive for illegal drug use while possessing a security clearance in 2012; that he intentionally lied about details of an arrest during a background interview in 2011; that he falsified responses to four questions in a security clearance application (SCA) in 2013; and that he falsified responses to questions in two SCAs in 2011. Applicant does not challenge any of the Judge’s findings of fact. Instead, he claims the Judge erred in her mitigation and whole-person analysis. In his appeal brief, Applicant contends that his misconduct occurred four to six years ago when he was 21 years old or younger and that he fully disclosed all pertinent information in a more recent SCA. He also argues some of his misconduct occurred under unique circumstances that are unlikely to recur. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. A party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 16-00276 at 5 (App. Bd. Oct. 30, 2017). In this regard, we note the Judge discussed Applicant’s more recent SCA submission in her mitigation analysis and concluded that “Applicant’s admissions and disclosures do not fully mitigate his past conduct to include deliberate falsifications.” Decision at 12. Applicant also contends that the Judge erred in failing to examine mitigating condition 17(g) because he no longer associated with the individual who provided him a cigarette that was laced with an unknown drug (Appeal Brief at 7-8) and the Judge erred in failing to address various whole- person factors. A Judge is not required to discuss all the analytical factors that could potentially apply in a case. See, e.g., ISCR Case No. 14-06135 at 2, n. 1 (App. Bd. Jun. 15, 2016). In this case, the Judge considered the totality of the evidence in reaching her decision. We find no error in her mitigation and whole-person analysis. 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board