ISCR Case No. 03-27170

27170.a1</P> --> <!-- /CASE --> <!-- DATE --> <!-- 05/05/2006</P> --> <!-- /DATE --> <P>DATE: May 5, 2006</P> <P><HR> </P> In Re: <P>-----------------</P> <P>SSN: -----------</P> <P>Applicant for Security Clearance</P> <P><HR> </P> ISCR Case No. 03-27170 <P STYLE="text-align: CENTER"><STRONG>APPEAL BOARD DECISION</STRONG></P> <P STYLE="text-align: CENTER"><STRONG><SPAN STYLE="text-decoration: underline">APPEARANCES</ SPAN></STRONG></P> <P STYLE="text-align: CENTER"><SPAN STYLE="font-size: 11pt"><STRONG>FOR GOVERNMENT</STRONG></SPAN></P> <P STYLE="text-align: CENTER"><SPAN STYLE="font-size: 11pt">Melvin A. Howry, Esq., Department Counsel</ SPAN></P> <P STYLE="text-align: CENTER"><SPAN STYLE="font-size: 11pt"><STRONG>FOR APPLICANT</STRONG></SPAN></P> <P STYLE="text-align: CENTER"><SPAN STYLE="font-size: 11pt">Kenneth M. Roberts, Esq.</SPAN></P> <P>The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On February 18, 2005, DOHA issued a statement of reasons advising Applicant of the basis for that decision--security concerns raised under Guideline H (Drug Involvement), Guideline G (Alcohol Consumption), Guideline D (Sexual Behavior), Guideline E (Personal Conduct) and Guideline J (Criminal Conduct), pursuant to Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 2, 2005, after the hearing, Administrative Judge Richard A. Cefola granted Applicant's request for a security clearance. Department Counsel timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. </P> <P>Department Counsel raised the following issues on appeal: whether the Administrative Judge's conclusion that Applicant's falsifications of a Security Clearance Application (SCA) were mitigated was unsupported by the record evidence and whether the Judge's favorable security clearance decision was arbitrary, capricious, and contrary to law because it is based on a piecemeal analysis of the record evidence. We reverse the Administrative Judge's decision to grant the clearance. </P> <P> </P> <P><STRONG>I. Whether the Record Supports the Administrative Judge's Factual Findings</STRONG></P> <P>A. Facts</P> <P>The Administrative Judge found the following:</P> <P>The Applicant was granted a security clearance by the Air Force in 1980. Subsequent to being granted a clearance, he used marijuana, amphetamines and cocaine. The Applicant used marijuana once or twice a week from 1971 until about 1981. He used amphetamines once in 1990.</P> <P>The Applicant used cocaine with varying frequency from about 1972 to 1984, and from about August 2001 to May 2003. In 1984 he was arrested and subsequently found guilty of Possession of a Narcotic Controlled Substance, cocaine. The Applicant entered a drug diversion program and the charge was subsequently dismissed upon the program's completion. In September 1989, Applicant was also arrested for resisting arrest.</P> <P>The Applicant consumed alcohol, at time to excess and to the point of intoxication from 1972 until May of 2003. He was a binge drinker, whose drink of choice was beer.</P> <P>The Applicant engaged in two sexual episodes outside his marriage, the most recent episode occurring in 2001. Applicant's wife is unaware of any of those episodes and his counselor has advised him not to disclose them to her. Applicant cannot be blackmailed about those transgressions because he has disclosed them to his supervisor and would inform his wife about them if he were threatened or coerced as a result of them.</P> <P>In May 2003, the Applicant tested positive for cocaine and was removed from a position as a part- time pilot with a commercial airline. In June of 2003, he entered an inpatient treatment program, followed by outpatient treatment from July to October of 2003, and treatment from a licensed marriage family counselor. The Applicant was diagnosed as suffering from alcohol dependence and cocaine dependence. He successfully completed the treatment programs and was reinstated as a commercial pilot in May of 2004. The Applicant has not used any controlled substance since May 10, 2003 and does not intend to use drugs in the future. He last consumed alcohol on May 17, 2003, has an Alcoholics Anonymous (AA) sponsor, and attends AA meetings on a regular basis. In ay of 2005, Applicant received a favorable long-term prognosis from a "Senior Aviation Medical Examiner (AME) for the Federal Aviation Administration."</P> <P>In answers to questions 27 and 28 on his November 2001 Security Clearance Application (SCA), the Applicant failed to disclose any of his past drug involvement. That lack of candor was a violation of 18 U.S.C. §1001. In answer to question 6 on his November 2001 SCA, the Applicant failed to disclose his part-time employment as a commercial airline pilot. The Applicant testified credibly that this was due to "oversight" on his part. The Applicant disclosed his 1984 drug arrest in response to question 24 of his November 2001 SCA and voluntarily disclosed all of his past drug involvement in a sworn statement executed in October 2003. He also disclosed his past drug involvement in answer to questions 27 and 28 on a March 2005 SCA.</P> <P>B. Discussion</P> <P>The Appeal Board's review of the Administrative Judge's findings of fact is limited to determining if they are supported by substantial evidence--such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record. Directive ¶ E3.1.32.1. "This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." <EM>Consolo v</EM>. <EM>Federal Maritime Comm'n</EM>, 383 U.S. 607, 620-21, 86 S. Ct. 1018, 16 L. Ed. 2d 131 (1966). In evaluating the Administrative Judge's findings, we are required to give deference to the Administrative Judge's credibility determinations. Directive ¶ E3.1.32.1.</P> <P>To the extent necessary to resolve the issues raised on appeal, the Judge's findings of fact will be discussed below in conjunction with the analysis of his ultimate conclusions.</P> <P><STRONG>Whether the Record Supports the Administrative Judge's Ultimate Conclusions.</ STRONG></P> <P>An Administrative Judge is required to "examine the relevant data and articulate a satisfactory explanation for" the decision, "including a 'rational connection between the facts found and the choice made."' <EM>Motor Vehicle Mfrs</EM>. <EM>Ass'n of the United </EM>States <EM>v</EM>. <EM>State Farm Mut</EM>. <EM>Auto</EM>. <EM>Ins</EM>. Co., 463 U.S. 29, 43 (1983) (quoting <EM>Burlington Truck Lines</EM>, <EM>Inc</ EM>. <EM>v</EM>. <EM>United States</EM>, 371 U.S. 156, 168 (1962)). The Appeal Board may reverse the Administrative Judge's decision to grant, deny, or revoke a security clearance if it is arbitrary, capricious, or contrary to law. Directive ¶ E3.1.32.3. Our scope of review under this standard is narrow and we may not substitute our judgment for that of the Administrative Judge. We may not set aside an Administrative Judge's decision "that is rational, based on consideration of the relevant factors, and within the scope of the authority delegated to the agency..." <EM>Motor Vehicle Mfrs</EM>. <EM>Ass'n</ EM>, 463 U.S. at 42. We review matters of law <EM>de novo</EM>. </P> <P>Department Counsel contends that the Administrative Judge's favorable security clearance decision is arbitrary, capricious, and contrary to law, and unsupported by the weight of the record evidence in its ultimate conclusion that the Guideline E concerns (i.e., falsification) were mitigated by Guideline E itigating Condition 2.<A HREF="#N_1_"><SUP> (1)</ SUP></A> In support of that contention, Department Counsel argues that the Judge erred by: (1) accepting at face value Applicant's testimony that he voluntarily provided information about his drug use to investigators before being confronted with the fact of his drug use, and (2) applying Guideline E itigating Condition 2 in Applicant's favor when it does not apply to the facts and circumstances of this case as a matter of law, and Applicant's disclosures cannot be deemed "recent." Department Counsel's argument has merit. </P> <P>The only record evidence supporting the Administrative Judge's conclusion that Applicant's disclosure of his past drug use was voluntary was Applicant's brief testimony at the hearing.<A HREF="#N_2_"><SUP> (2)</ SUP></A> The Judge previously concluded that Applicant falsified a November 2001 security clearance applic

--> <!-- DATE --> <!-- 05/05/2006</P> --> <!-- /DATE --> <P>DATE: May 5, 2006</P> <P><HR> </P> In Re: <P>-----------------</P> <P>SSN: -----------</P> <P>Applicant for

quently provided correct information voluntarily." Directive ¶ E2.A5.1.3.2. <P><A NAME="N_2_">2. </A>In response to the Judge's question, "Did you spontane