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ISCR Case 17-04198.a1 — CASE

ISCR Case 17-04198.a1denied

Case Headnote

ISCR Case No. 17-04198.a1

Jan 15, 2019· Hon. Charles C. Hale· appeal

Summary

A military veteran with a master's degree was denied a security clearance under Guideline E (Personal Conduct) and Guideline H (Drug Involvement) due to a history of drug misuse. The applicant's past drug use, which occurred while previously holding a clearance, raised concerns regarding his judgment and reliability.

Specifically, the judge noted that the applicant's prior commitments to abstain from drug use had not been maintained, further indicating a lack of reliability. These factors led to the conclusion that the applicant's history of drug involvement and personal conduct presented an unacceptable security risk.

Despite the applicant's current claims of abstinence and intentions to avoid future drug use, the judge's adverse decision was affirmed on appeal. The denial was based on the disqualifying conditions outlined in Adjudicative Guidelines Paragraphs 15 and 25.

Conditions Referenced

Disqualifying

AG ¶ 25raisedDrug Involvement
AG ¶ 15raisedPersonal Conduct

Key Rule Quoted

“An applicant’s misuse of drugs after having been placed on notice of the incompatibility of drug abuse with clearance eligibility raises questions about his or her judgment and reliability.”

Procedural Posture

SOR issuedMar 7, 2018
Answer filed—
Hearing heldSep 28, 2018
Decision dateJan 15, 2019Appeal decision affirmed.

Cite For

Issues of Judgment and Reliability in Drug Misuse Cases
Impact of Prior Promises on Security Clearance Eligibility
Affirmation of Adverse Decisions Based on Drug Involvement

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 who was denied a security clearance due to drug involvement and personal conduct issues. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful error in the Judge's ruling.

Appealed bythe applicant

Applicant representationAttorney

Judge belowEdward W. Loughran — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline 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's decision was supported by substantial evidence and articulated a satisfactory explanation for the adverse decision regarding the applicant's drug use and its implications for national security.

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

James E. Moody
James F. Duffy
Charles C. Hale

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: An applicant’s misuse of drugs after having been placed on notice of the incompatibility of drug abuse with clearance eligibility raises questions about his or her judgment and reliability. Adverse decision affirmed. CASENO: 17-04198.a1 DATE: 01/15/2019 DATE: January 15, 2019 In Re: ----------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 17-04198

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On March 7, 2018, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline E (Personal Conduct) and Guideline H (Drug Involvement and Substance Misuse) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 28, 2018, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Edward W. Loughran 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 served in the military from 2004 until his honorable discharge in 2011. He has held a clearance, though with some breaks, since 2004. He has a master’s degree. Applicant smoked marijuana regularly before joining the military. He smoked it once while on active duty and resumed using it after his discharge. Some instances of marijuana use occurred while Applicant held a security clearance, and he used it while working in Europe and while performing duties in the Middle East. Applicant disclosed his drug use in security clearance applications (SCA) completed in March and August of 2014. He stated that he did not intend to use marijuana again because it was not consistent with his employment or clearance eligibility. He reiterated this intention during clearance interviews in May and October 2014. In late 2015, Applicant consumed food that he knew contained marijuana. Early the next year he smoked marijuana. He reported this use on an April 2016 SCA. During a subsequent interview, he stated that he liked marijuana and would continue smoking it if it were not forbidden by his job and by the requirements of his security clearance. Applicant has not used marijuana since his use in early 2016. He testified that he will not use it again, and he signed a statement of intent to refrain from the use of illegal drugs, acknowledging that such conduct will be grounds for revoking his clearance. The Judge stated that Applicant was honest and credible. However, he stated that Applicant was also sincere in 2014 when he made a prior promise to refrain from drug use, a promise that he did not keep. He concluded that Applicant’s misconduct creates a potential for exploitation and reflects poorly on his judgment.

DISCUSSION

Applicant cites to record evidence that he contends the Judge did not consider, such as his years of abstinence from drug use, his forthright disclosures of his misconduct, his honesty, 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. 17-02145 at 3 (App. Bd. Sep. 10, 2018). We give due consideration to the Hearing Office case that Applicant has cited. Hearing Office cases are not binding on other Hearing Office Judges or on the Appeal Board. Id. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. An applicant’s misuse of drugs after having been placed on notice of the incompatibility of drug abuse with clearance eligibility raises questions about his or her judgment and reliability. See, e.g., ISCR Case No. 16-03460 at 3 (App. Bd. May 24, 2018). 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board Signed: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board