KEYWORD: Guideline G; Guideline H; Guideline E; Guideline J
DIGEST: The Appeal Board can consider evidence outside the record on threshold issues such
as due process and jurisdiction.  The record, read in conjunction with both parties’ appeal
submissions, provides no reason to believe that Applicant was denied his right to counsel or that
DOHA personnel discouraged him from seeking counsel.  Adverse decision affirmed. 
CASE NO: 09-05486.a1
DATE: 08/01/2012
DATE: August 1, 2012
In Re:
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Applicant for Security Clearance
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ISCR Case No. 09-05486
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Caroline H. Jeffreys, Esq., Department Counsel
FOR APPLICANT
David B. Gates, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On October 5, 2011, DOHA issued a statement of reasons (SOR) advising Applicant of
the basis for that decision–security concerns raised under Guideline G (Alcohol Consumption),
Guideline H (Drug Involvement), Guideline E (Personal Conduct) and Guideline J (Criminal
Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).
Applicant requested a hearing.  On May 17, 2012, after the hearing, Administrative Judge David M.
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White denied Applicant’s request for a security clearance.  Applicant appealed pursuant to Directive
¶¶  E3.1.28 and E3.1.30.
Applicant raised the following issues on appeal: whether Applicant was denied his right to
counsel and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or
contrary to law.  The Judge’s favorable findings under Guideline G are not at issue in this appeal.
Consistent with the following, we affirm the Judge’s decision.
The Judge made the following pertinent findings of fact: Applicant is a mechanic for a
Defense contractor.  He received a security clearance in 2006, while working for a previous
employer.  
Applicant began consuming alcohol at age 18.  In 1987, he was arrested and convicted for
DUI.  He was entered into a five-year deferred prosecution agreement.  In 1990 he successfully
completed court-ordered alcohol treatment.  He was diagnosed as alcohol-dependent and advised
to abstain from alcohol consumption.  He was abstinent for five years, but resumed drinking.  He
discontinued attendance at Alcoholics Anonymous.  
Applicant began using marijuana in the early 1970s, at 18 years of age.  He abstained from
drug use for four years around the time of his DUI probation.  However, he resumed smoking
marijuana in the late 1990s.  On one occasion he was arrested for possession of drug paraphernalia.
By the mid-2000s, he was using marijuana regularly, around twice a week.  He was spending about
$80 per month on marijuana.  In April 2007, Applicant was injured at work.  After receiving medical
treatment, he smoked marijuana to ease the pain.  The next month, Applicant submitted to a drug
test due to his job-related injury.  The test yielded a positive result for marijuana.  He was referred
to a substance abuse assessment, which diagnosed him with alcohol and marijuana dependence.  He
was recommended for a six-month outpatient relapse program, which he successfully completed.
Applicant was aware that using marijuana after being granted a security clearance raises security
concerns.
In 2009, Applicant was interviewed by an OPM investigator.  He told the investigator that
he had first smoked marijuana in the winter of 2004.  He deliberately failed to disclose his use prior
to 2004, which had begun in the early 1970s.  
In 2005 and again in 2008, Applicant submitted security clearance applications (SCA).
Questions on those SCAs asked if he had ever been charged or convicted of offenses related to
alcohol or drugs.  Applicant answered “no” to these questions.  The SCAs also asked about any
illegal drug use during the prior seven years.  Applicant denied any such use in the 2005 SCA and
admitted only three uses in 2007 on his 2008 SCA, although he did admit to having used marijuana
while holding a security clearance.  During the hearing, Applicant admitted to minimizing and
denying the extent of his alcohol-related and drug-related criminal history because he did not want
to lose his job.  
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Applicant submitted performance evaluations and other evidence of good work performance
pertaining to the years 2005 and 2006.  He also presented letters of recommendation from an
employer who had fired him for defective performance.  He did not provide evidence of the quality
of his recent work performance.  
In the Analysis, the Judge concluded that Applicant had succeeded in mitigating the security
concerns under Guideline G.  He made similar conclusions regarding all but one of the Guideline
H allegations, finding against Applicant for an allegation of having used marijuana while holding
a clearance.   He also cleared Applicant under Guideline J of allegations pertaining to his drug and
alcohol charges.  However, he concluded that Applicant’s false statements, which were alleged both
under Guideline E and Guideline J, were not mitigated.  He stated that these false statements were
both serious and recent, going to the heart of an evaluation of his reliability, trustworthiness, and
integrity.  The Judge stated that the character evidence that Applicant had submitted was not
sufficient to mitigate the concerns arising form his efforts to conceal his past conduct.
Applicant represented himself at the hearing.  He contends that the was denied his right to
counsel.  He asserts that, prior to the hearing, he had asked Department Counsel if he needed a
lawyer and was advised that he did not.  He asserts on appeal that this response mis-characterized
the adversarial nature of the hearing .  He states that “[i]t does not appear from the decision that
there was anything documented about the desire of the [A]pplicant to have an attorney or that this
fact was even made known to the Judge by the Department Counsel.”  Appeal Brief at 2.  Applicant
asserts that, had he been represented by a lawyer at the hearing, he could have presented additional
evidence of good character and job performance.  
Applicant’s Appeal Brief, and Department Counsel’s Reply Brief, refer to matters outside
the record.  We are not authorized to consider new evidence on appeal.  Directive ¶ E3.1.29.
However, we have, in appropriate cases, considered evidence outside the record insofar as it raises
threshold issues of due process, jurisdiction, etc.  See, e.g., ISCR Case No. 10-09936 at 2 (App. Bd.
Feb. 3, 2012).  In this case we will consider Applicant’s and Department Counsel’s assertions for
the light they shed on Applicant’s claim that he was denied the right to counsel set forth in the
Directive.
Department Counsel notes that Applicant was advised of his right to counsel by means of
written guidance that DOHA sent to him in anticipation of his hearing.  This guidance, which is part
of the record, states that the 
hearing is an adversarial proceeding in which the parties have the responsibility to
present their respective cases.  The Government is normally represented by an
attorney known as a Department Counsel.  The Applicant has the option of appearing
by himself or herself without an attorney, or being represented by an attorney
selected and paid for by the Applicant . . .   
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Department Counsel has attached to her Reply Brief a copy of a letter she sent to Applicant
prior to the hearing in which she repeats this advice.  Moreover, at the beginning of the hearing, the
Judge engaged in the following colloquy with Applicant:
[Judge]: And are you aware of your right to have an attorney or someone else here
to assist you today?
[Applicant]: Yes.
[Judge]: I see you’re here by yourself.  Are you planning to represent yourself?
[Applicant]: Yes.
[Judge]: Okay.  Let me get some necessary information on the record, then . . . your
age and education level?
[Applicant]: My age is 56, and I graduated out of high school. 
[Judge]: Okay.  And are you able to read and write the English language?
[Applicant]: Yes.
[Judge]: Were you able to review and understand the materials that were sent to you
by the Defense Office of Hearings and Appeals?
[Applicant]: Yes.
[Judge]:  And do you understand that our purpose today is to determine whether it
is clearly consistent with the interest of national security to authorize you access to
classified information?
[Applicant]: Yes . . . 
After further inquiry as to the extent of Applicant’s understanding of the nature of a security
clearance and the purposes of the adjudicative process, the Judge stated as follows: “Okay.  I find
that the Applicant has knowingly decided to represent himself and is able to do so.”  Tr. at 4-7.
After this, the Judge explained the hearing to Applicant in detail, including Applicant’s obligations
and responsibilities, e.g., Tr. at 8-9, 19-20.  He also repeatedly inquired of Applicant if he had any
objections, problems, or additional evidence, e.g., Tr. at 12, 16, 19, 20, 28, 30, 45, 73.   In her Reply
Brief, Department Counsel states that “Applicant never claimed that anything he had been told by
Department Counsel was inconsistent with what was being explained to him by the Administrative
Judge.”  Reply Brief at 8.  
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We find the arguments in Department Counsel’s Reply Brief to be persuasive.  The Judge
engaged in an extensive colloquy with Applicant on the question of his self-representation.  At no
time did Applicant state or intimate that he wanted a lawyer.  Neither did he intimate that
Department Counsel had provided him with advice regarding  the nature of the proceeding and his
right to counsel that was at variance with written guidance he had received, both from DOHA and
from Department Counsel herself.  
Moreover, although Applicant contends that, had he been represented by counsel, he could
have presented more evidence of good work performance and character, he cites to no actual piece
of evidence that he would have submitted.  It appears that Applicant was fully apprised of the
adversarial nature of the hearing, his right to counsel, and to his other rights.  It also appears that
Applicant voluntarily undertook to represent himself.  
After considering the briefs of the parties in light of the record, we find no reason to
conclude that Applicant was deprived of the rights afforded him by the Directive to a fair hearing
and due process.  Applicant has failed to rebut the presumption of good faith and regularity to which
Federal employees, such as Department Counsel, are entitled.  See, e.g., ISCR Case No. 10-11076
at 4 (App. Bd. Feb. 9, 2012).  Applicant was not denied his right to counsel or other due process
rights.
Applicant contends that the Judge erred in stating that he had not demonstrated remorse for
his drug-related conduct while holding a security clearance.  He asserts that lack of remorse is not
listed under Guideline H as a mitigating condition.  However, a Judge is required to consider the
record as a whole in making a clearance decision.  See, e.g., ISCR Case No. 10-10612 at 3 (App. Bd.
Jul, 9, 2012).  “Available, reliable information about the person, past and present, favorable and
unfavorable, should be considered in reaching a determination.”  Directive, Enclosure 2 ¶ 2(a).
Remorse or lack thereof was a factor that the Judge could legitimately consider in performing an
analysis of security concerns attendant to Applicant’s drug use while holding a security clearance.
Moreover, we find no reason to conclude that the Judge extended undue weight to this matter.    
  The record supports a conclusion that the Judge examined the relevant data and articulated
a satisfactory explanation for the decision, “including a ‘rational connection between the facts found
and the choice made.’”  Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168
(1962)).  The Judge’s adverse 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.”
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Order
The Judge’s adverse security clearance decision is AFFIRMED. 
Signed: Michael Y. Ra’anan         
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: Jeffrey D. Billett              
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: James E. Moody             
James E. Moody
Administrative Judge
Member, Appeal Board