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ISCR 20-00617.a1: Guideline H security clearance appeal, denied (2021) · CASE

ISCR Case 20-00617.a1denied

Case headnote

ISCR Case No. 20-00617.a1

Aug 30, 2021· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves a married applicant in his thirties, holding a master's degree, whose security clearance was denied under Guideline H (Drug Involvement). The primary concern stemmed from his use of marijuana both before and after he obtained a security clearance.

Specifically, the applicant's post-clearance marijuana use was identified as a significant disqualifying condition (H.1). Although the applicant stated an intent to abstain from future drug use, these claims were deemed insufficient to mitigate the security concerns arising from his drug involvement.

The appeal board ultimately affirmed the denial of the clearance. They found no error in the judge's assessment of the applicant's trustworthiness, concluding that national security considerations necessitated the denial.

Conditions referenced

Disqualifying

H.1raisedDrug Involvement

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 issuedOct 5, 2020
Answer filed—
Hearing heldMay 4, 2021
Decision dateAug 30, 2021

Cite for

Affirmation of Adverse Decision Based on Drug Involvement Under Guideline H
Consideration of National Security in Clearance Decisions
Insufficient Mitigation of Drug Use Despite Claims of Intent to Abstain

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 under Guideline H. The applicant argued that the Judge's decision was arbitrary and did not properly consider mitigating factors. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRichard A. Cefola denied the clearance

Decided ona hearing

Guidelines belowGuideline H

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant contends the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision, affirming that the Judge considered all relevant evidence and articulated a satisfactory explanation for the denial of the security clearance.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

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 H DIGEST: Applicant cites to a Hearing Office decision in support of his appeal. Such decisions are neither binding on other Hearing Office Judges nor on the Appeal Board. The cited Hearing Office decision does not provide a reason to conclude the Judge erred in his analysis or conclusions in this case. Adverse Decision Affirmed CASE NO: 20-00617.a1 DATE: 08/30/2021 DATE: August 30, 2021 ) In Re: ) ) ------------------------- ) ISCR Case No. 20-00617

) ) Applicant for Security Clearance ) )

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Asya Hogue, Esq.

The Department of Defense (DoD) declined to grant Applicant a security clearance. On October 5, 2020, 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 hearing. On May 4, 2021, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Richard A. Cefola 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 Pertinent Findings of Fact and Analysis Applicant, who is in his thirties, is married, has a master’s degree, and works for a defense contractor. In a 2012 security clearance application, he admitted using marijuana about five times in 2008 and 2009. After being granted a security clearance in 2012, he used marijuana about four additional times. He referred to his conduct as being “stupid and immature.” Decision at 2, citing to Tr. at 20. He signed a statement of intent not to use illegal drugs in the future. Even though Applicant asserts he intends to abstain from future drug involvement, his use of marijuana after being alerted to the Government’s concern and being granted a security clearance is troubling and reflects a pattern of not being trustworthy. His last usage occurred was as recent as 2018, when he was not an immature teenager but instead was in his mid-to-late twenties. While he is given credit for his honesty in disclosing his marijuana use, he has not been mitigated the drug involvement security concerns.

DISCUSSION

In his appeal brief, Applicant does not challenge any of the Judge’s specific findings of fact. Rather, he contends the Judge failed to adhere to Executive Order 10865 and the Directive by not considering all of the record evidence and by not properly applying the mitigating conditions and whole-person concept. He argues, for example, that his illegal drug use was infrequent and isolated instances of poor judgment that occurred over three years ago and that the Judge did not consider his drug abuse evaluation from a licensed clinical social worker. Applicant’s alternative interpretation of the evidence, however, is not sufficient to demonstrate error. See, e.g., ISCR Case No. 19-01400 at 2 (App. Bd. Jun. 3, 2020). None of his arguments are sufficient to rebut the presumption that the Judge considered all of the evidence in the record or enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Id. Applicant cites to a Hearing Office decision in support of his appeal. Such decisions are neither binding on other Hearing Office Judges nor on the Appeal Board. See, e.g., ISCR Case No.

17-03363 at 3 (App. Bd. Nov. 29, 2018). The cited Hearing Office decision does not provide a reason to conclude the Judge erred in his analysis or conclusions in this case. Applicant has failed to establish that the Judge committed any harmful error. 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 of the Judge 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