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ISCR Case 17-01661.a1 — CASE

ISCR Case 17-01661.a1denied

Case Headnote

ISCR Case No. 17-01661.a1

Mar 22, 2019· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline H (Drug Involvement) due to a history of drug misuse and substance misuse. The appeal board affirmed the denial, citing significant concerns about the applicant's judgment and reliability stemming from this pattern of behavior.

The board found that the nature and extent of the applicant's misconduct warranted an adverse decision. While the applicant raised mitigating conditions (AG ¶ 26), these were insufficient to overcome the disqualifying conditions (AG ¶ 25).

Ultimately, the applicant failed to rebut the presumption that the judge appropriately considered all evidence, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 25raisedDrug Involvement

Mitigating

AG ¶ 26rejectedMitigating CircumstancesThe applicant's claims of intent to avoid future drug use were insufficient to mitigate the concerns.

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 5, 2017
Answer filed—Applicant requested a decision on the written record.
Hearing heldNov 27, 2018Decision issued by Administrative Judge Caroline E. Heintzelman.
Decision dateMar 22, 2019Appeal affirmed.

Cite For

Affirmation of Denial Based on Drug Involvement Under Guideline H
Insufficient Mitigating Circumstances in Drug Misuse Cases
Importance of National Security in Clearance Decisions

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 a security clearance based on drug involvement and substance misuse. The applicant contended that the Judge's decision was arbitrary and capricious. The Board affirmed the denial, finding no harmful error in the Judge's decision-making process.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCaroline E. Heintzelman — denied the clearance

Decided onthe written record

Guidelines belowGuideline H

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 did not err in weighing the evidence and that the decision was supported by substantial evidence. The applicant's arguments did not demonstrate that the Judge's decision was arbitrary or capricious.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael Y. 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 DIGEST: Applicant’s brief alludes to the time that it has taken to adjudicate his SCA. We do not have authority to comment on the manner in which officials conduct clearance investigations. He draws our attention to various pieces of record evidence that support his effort to obtain a favorable decision, for example documents substantiating his medical problems, his statement of intent not to misuse drugs in the future, his explanations for his security-significant conduct, etc. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record, nor has he shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Applicant requests that he be granted a clearance accompanied by a warning against future misconduct. However, this is appropriate only when an applicant’s circumstances are not serious enough to warrant an adverse decision. See Directive, Encl. 2, App. A ¶ 2(h). Given the nature and extent of Applicant’s misconduct, neither the Judge nor other officials erred by failing to apply this procedure. Adverse decision affirmed. CASENO: 17-01661.a1 DATE: 03/22/2019 DATE: March 22, 2019 In Re: ---------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 17-01661

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On June 5, 2017, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline H (Drug Involvement and Substance Misuse) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On November 27, 2018, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Caroline E. Heintzelman 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 and Analysis Applicant has used marijuana in the recent past. He began doing so in 2008, in order to relieve pain caused by a knee ailment, and a few years later he began growing it himself. In his security clearance application (SCA) he advised that he used marijuana until May 2015. Although he claimed in his SCA that he would not do so again, in fact he later told his interviewer that he used it twice between August 2015 and January 2017. On this last occasion he used marijuana with friends “because it was there.” Decision at 3. From February 2012 until June 2015 Applicant misused various prescription medications, such as morphine, hydrocodone, oxycodone, Oxycontin, tramadol, suboxone, xanax, Ativan, amphetetamines, Ritalin, and soma. He stated that he stopped using controlled substances after consultation with a health care provider. He stated that he would never have abused drugs if he had known the effect it would have on his clearance, and he signed a statement of intent never to re-offend. Applicant’s misuse of controlled substances constituted a pattern of behavior that impugns his willingness to follow rules and regulations. Even though Applicant’s misconduct occurred off duty, it reflects poor judgment and raises questions about his fitness for access to classified information.

DISCUSSION

Applicant’s brief alludes to the time that it has taken to adjudicate his SCA. We do not have authority to comment on the manner in which officials conduct clearance investigations. See, e.g., ISCR Case No. 14-04186 at 3-4 (App. Bd. Oct. 28, 2015). He draws our attention to various pieces of record evidence that support his effort to obtain a favorable decision, for example documents substantiating his medical problems, his statement of intent not to misuse drugs in the future, his explanations for his security-significant conduct, etc. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record, nor has he shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 17-04198 at 2 (App. Bd. Jan. 15, 2019). Applicant requests that he be granted a clearance accompanied by a warning against future misconduct. However, this is appropriate only when an applicant’s circumstances are not serious enough to warrant an adverse decision. See Directive, Encl. 2, App. A ¶ 2(h). Given the nature and extent of Applicant’s misconduct, neither the Judge nor other officials erred by failing to apply this procedure. 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 Y. Ra’anan Michael Y. 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