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ISCR 04-08747.a1: Guideline H security clearance appeal, denied (2007) · CASE

ISCR Case 04-08747.a1denied

Case headnote

ISCR Case No. 04-08747.a1

Sep 21, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

This case concerns an applicant who was denied a security clearance under Guideline H (Drug Involvement) due to a significant history of illegal drug use. The applicant, representing himself, presented evidence of rehabilitation to mitigate security concerns.

However, the judge determined that the applicant's lengthy and serious history of drug use, which included daily marijuana use from 1998 to 2003, was not sufficiently mitigated. Despite the applicant's arguments and evidence of rehabilitation, the judge found these insufficient to overcome the serious nature of the disqualifying conduct.

Ultimately, the judge weighed the mitigating evidence against the record evidence and concluded that it did not alleviate the government's security concerns, leading to the denial of the security clearance.

Conditions referenced

Disqualifying

HraisedDrug Involvement

Key rule quoted

“[T]here is a strong presumption against granting a security clearance.”
Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)

Procedural posture

SOR issuedMay 16, 2005
Answer filed—
Hearing heldMar 26, 2007
Decision dateSep 21, 2007

Cite for

Weighing Mitigating Evidence Against Disqualifying Conduct Under Guideline H
Presumption Against Granting Security Clearances
Burden of Proof Shifts to Applicant to Establish Mitigation After Government Presents Evidence of Security Concerns

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 under Guideline H due to the applicant's history of drug involvement. The applicant argued that the Judge's decision was arbitrary and capricious, claiming that mitigating factors were not properly considered. The Board affirmed the Judge's decision, finding it supported by substantial evidence and not contrary to law.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran 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 argued that the Judge's adverse security clearance decision under Guideline H 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 that the Judge properly weighed the mitigating evidence against the disqualifying conduct, concluding that the adverse decision was not arbitrary, capricious, or contrary to law.

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 Y. Ra’anan (Chair)
Jean E. Smallin
William S. Fields

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

FOR OFFICIAL USE ONLY When unredacted this document contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA Exemption 6 applies KEYWORD: Guideline H DIGEST: A review of the Judge’s decision indicates that the Judge weighed the mitigating evidence against the record evidence of the length seriousness and recency of the disqualifying conduct. Adverse decision affirmed. CASENO: 04-08747.a1 DATE: 09/21/2007 DATE: September 21, 2007 In Re: ---------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 04-08747

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On May 16, 2005, DOHA issued a statement of reasons advising Applicant of the basis There is a rebuttable presumption that a Judge considered all the record evidence unless he specifically states otherwise. See, e.g., DOHA Case No. 96-0228 at 3 (App. Bd. Apr. 3, 1997). Moreover, a Judge is not required to cite or discuss every piece of record evidence. See, e.g., DISCR Case No. 90-1596 at 5 (App. Bd. Sep. 18, 1992). In this case, the Judge specifically addressed favorable evidence cited by the Applicant. See Decision at 2, 6 and 9. for that decision—security concerns raised under Guideline H (Drug Involvement) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On March 26, 2007, after the hearing, Administrative Judge Edward W. Loughran denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse security clearance decision under Guideline H is arbitrary, capricious, or contrary to law.

Applicant argues that the Judge should have concluded that the security concerns raised under Guideline H had been mitigated, as a matter of law, because Applicant’s drug use occurred in the past, Applicant has demonstrated that he would not use drugs in the future, and Applicant provided clear evidence of rehabilitation. In support of this argument, Applicant points to the favorable evidence in the record, including his participation in counseling, his academic achievements, his military service, his outstanding work record, and his significant community service. Given the totality of the record evidence, Applicant’s arguments do not demonstrate that the Judge’s decision is arbitrary, capricious, or contrary to law. “[T]here is a strong presumption against granting a security clearance.” Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). Once the government th presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. “The application of disqualifying and mitigating conditions does not turn simply on a finding that one or more of them apply to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole.” See ISCR Case No. 01-14740 at 7 (App. Bd. Jan. 15, 2003). “Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision.” See ISCR Case No. 05-02833 (App. Bd. Mar.19, 2007). “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. An applicant’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 ISCR Case No. 05-03143 at 3 (App. Bd. Dec. 20, 2006). In this case, the Judge made sustainable findings as to a lengthy and serious history of improper or illegal drug use by an Applicant who was familiar with the security clearance process. That history included illegal marijuana use, sometimes on a daily basis, from approximately 1998 to at least September 2003. It also included the purchase of marijuana, three marijuana-related criminal offenses, and the illegal use of marijuana while holding a security clearance granted by the Department of Defense. A review of the decision indicates that the Judge weighed the mitigating evidence offered by Applicant against the record evidence relating to the length, seriousness and recency of the disqualifying conduct, and considered the possible application of relevant mitigating conditions and whole-person factors. The Judge reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome the government’s security concerns. The Board does not review a case de novo. Given the record that was before him, the Judge’s ultimate unfavorable clearance decision under Guidelines H is not arbitrary, capricious or contrary to law. See, e.g., ISCR Case No. 04-12548 at 2-3 (App. Bd. Sep. 18, 2006).

ORDER

The decision of the Judge denying Applicant a clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board