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ISCR Case 17-02225.a1 — CASE

ISCR Case 17-02225.a1denied

Case Headnote

ISCR Case No. 17-02225.a1

Jun 25, 2019· Hon. Michael Y. Ra'anan· appeal

Summary

A 48-year-old defense contractor was denied a security clearance under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The denial stemmed from the applicant's past drug use and his failure to self-report this involvement, which were cited as disqualifying conditions under Adjudicative Guidelines paragraphs 15 and 25.

The appeal board upheld the denial, concluding that the applicant's past drug use demonstrated a willingness to engage in high-risk behavior. Furthermore, his failure to self-report undermined his suitability for a security clearance.

Despite the applicant's claims of rehabilitation and a clean record, the board found the judge's conclusions regarding his security clearance suitability to be reasonable and supported by substantial evidence. Consequently, the security clearance was DENIED.

Conditions Referenced

Disqualifying

AG ¶ 25raisedDrug Involvement
AG ¶ 15raisedPersonal Conduct

Key Rule Quoted

“Even in the absence of any security violations, the Government can deny or revoke access to classified information based on the existence of facts and circumstances that indicate an applicant does not demonstrate the high degree of judgment, reliability, or trustworthiness required of persons handling classified information.”
— ISCR Case No. 99-0462 at 4-5 (App. Bd. May 25, 2000)

Procedural Posture

SOR issuedJul 28, 2017
Answer filed—
Hearing heldMay 10, 2019
Decision dateJun 25, 2019

Cite For

Subjective Nature of Security Clearance Decisions
Impact of Past Conduct on Security Suitability
Importance of Self-reporting 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 and Guideline E. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and reasonable inferences.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMichael H. Leonard — 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 conclusions were based on substantial evidence and reasonable inferences drawn from the evidence, and that the Judge articulated a satisfactory explanation for the decision. The Board concluded that the adverse decision was sustainable on the record.

Standard of review applied

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

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 E; Guideline H DIGEST: First, even in the absence of any security violations, the Government can deny or revoke access to classified information based on the existence of facts and circumstances that indicate an applicant does not demonstrate the high degree of judgment, reliability, or trustworthiness required of persons handling classified information. Second, the conclusions of DOHA Judges are often subjective in nature. As we have noted in the past, security clearance decisions are not an exact science but rather are predictive judgments about a person’s security suitability in light of that person’s past conduct and present circumstances. Adverse decision affirmed. CASENO: 17-02225.a1 DATE: 06/25/2019 DATE: June 25, 2019 ) In Re: ) ) --------------------- ) ISCR Case No. 17-02225

) ) Applicant for Security Clearance ) )

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT. Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On July 28, 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) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On May 10, 2019, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Michael H. Leonard 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 is a 48-year-old employee of a defense contractor. He was granted a security clearance in 2006. He was arrested for possession of drug paraphernalia in 1992 and for possession of marijuana in 1995. The Judge found in favor of Applicant on those two drug-related arrests. In early 2017, Applicant smoked marijuana at a party that he attended without his wife. Later that month, he tested positive for marijuana during a random drug screening, and his employer suspended him without pay. He did not report his marijuana use before the drug test. His employer allowed him to continue his employment contingent on him successfully completing a substance abuse program. Shortly after completing the substance abuse program, he passed a drug test and returned to work under a last-chance agreement. Applicant attributed his latest drug incident to a lapse in judgment. He indicated that he has no intention of using illegal drugs in the future. He submitted a signed statement of intent to abstain from drug involvement, acknowledging that future use would be grounds to revoke his national security eligibility. Although Applicant presented a “good case in reform and rehabilitation,” the Judge concluded that he was not an acceptable security risk. The Judge noted that Applicant used marijuana as a security clearance holder who was subject to random drug tests, that such use demonstrated a willingness to engage in high-risk behavior, and that such use most likely would not have come to light absent the random drug test. “[Applicant’s] reluctance to voluntarily self-report such adverse information further undermines his suitability for a security clearance.” Decision at 6.

DISCUSSION

In his appeal brief, Applicant does not challenge any of the Judge’s findings of fact. Rather he challenges the Judge’s conclusions regarding his security clearance suitability. For example, he argues “[t]he judge came to his conclusion based on a subjective opinion of my future character and integrity that is contrary to my thirteen year career holding a clearance.” Appeal Brief at 1. In support of his arguments, he highlights, among other matters, the duration of time that has passed since his last marijuana use, his good record for protecting classified information, his honesty and openness during the investigative process, and the Judge’s comments that he understands the seriousness of the latest incident and presented a good case of reform and rehabilitation. We do not find Applicant’s arguments persuasive. First, even in the absence of any security violations, the Government can deny or revoke access to classified information based on the existence of facts and circumstances that indicate an applicant does not demonstrate the high degree of judgment, reliability, or trustworthiness required of persons handling classified information. See, e.g., ISCR Case No. 99-0462 at 4-5 (App. Bd. May 25, 2000). Second, the conclusions of DOHA Judges are often subjective in nature. As we have noted in the past, security clearance decisions are not an exact science but rather are predictive judgments about a person's security suitability in light of that person's past conduct and present circumstances. See, e.g., ISCR Case No. 02-11489 at 4 (App. Bd. Sep. 11, 2003), citing Department of Navy v. Egan , 484 U.S. 518, 528-529 (1988). From our review of the record, the Judge’s material findings and conclusions of a security concern in this case are based on substantial evidence or constitute reasonable inferences that could be drawn from the evidence. See, e.g., ISCR Case No. 12-03420 at 3 (App. Bd. Jul. 25, 2014). Third, Applicant’s arguments essentially amount to a disagreement with the Judge’s weighing of the evidence. 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). Applicant has failed to establish that the Judge committed any harmful error. 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.’” Egan, 484 U.S. at 528. 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