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ISCR 05-16318.a1: Guideline H security clearance appeal (2007) · CASE

ISCR Case 05-16318.a1unknown

Case headnote

ISCR Case No. 05-16318.a1

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

Summary

This case involved an applicant, represented by counsel, seeking a security clearance under Guideline H (Drug Involvement). The applicant had a history of using marijuana and other drugs but asserted that all drug use ceased in August 2004.

The initial decision raised Disqualifying Condition H.1, pertaining to drug involvement, but applied Mitigating Condition H.2, which addresses the cessation of drug use and a demonstrated intent not to resume.

The Appeal Board ultimately remanded the case for a new decision. The Board determined that the judge had relied on outdated guidelines when evaluating the applicant's drug use history, which was inconsistent with current policy standards. Therefore, no final outcome on the security clearance was reached.

Conditions referenced

Disqualifying

H.1raisedDrug Involvement

Mitigating

H.2appliedDrug-free for a Significant PeriodThe applicant has not used drugs since August 2004.

Key rule quoted

“A Judge cannot rely on an earlier version of the Directive to justify the Judge’s decision and that an applicant’s security clearance eligibility must be adjudicated under current DoD policies and standards, not past ones.”
ISCR Case No. 02-17369 at 3-4 (App. Bd. May 23, 2006)

Procedural posture

SOR issuedJan 24, 2006
Answer filed—
Hearing heldOct 31, 2006
Decision dateJun 21, 2007Appeal Board remanded the case.

Cite for

Remand Due to Reliance on Outdated Guidelines Under Guideline H
Evaluation of Drug Use Must Adhere to Current Policies
Criteria for Drug Involvement Must Reflect Current Standards

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

Remanded

The appeal involved a decision by an Administrative Judge granting the Applicant a security clearance despite concerns under Guideline H regarding drug involvement. The Department Counsel appealed, arguing that the Judge relied on outdated policy guidance. The Appeal Board found merit in the appeal and remanded the case for a new decision based on current guidelines.

Appealed bythe Government (Department Counsel)

Applicant representationAttorney

Judge belowChristopher Graham granted the clearance

Decided ona hearing

Guidelines belowGuideline H

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the Government (Department Counsel)Error sustained
The Judge erred by relying on outdated policy guidance in reaching his decision.

Why the Board ruled this way

The Board found that the Judge relied on outdated criteria in evaluating the recency of the Applicant's drug use, which was contrary to current DoD policies and standards.

No rational connection between facts and conclusion

On remand, the judge must

The Judge must issue a new decision relying explicitly on guidelines current at the time the SOR was issued.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decision

Appeal Board panel

Michael Y. Ra’anan (Chair)
Michael D. Hipple
James E. Moody

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: The specific criteria the Judge utilized in evaluating the recency of Applicant’s drug use were set forth in guideline no longer in force. The judge’s new decision should rely explicitly on guidelines current at the time the SOR was issued. Favorable decision remanded. CASENO: 05-16318.a1 DATE: 06/21/2007 DATE: June 21, 2007 In Re: ----------- SSN: -------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 05-16318

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Fahryn Hoffman, Esq., Department Counsel FOR APPLICANT Andrew F. Reish, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On January 24, 2006, DOHA issued a statement of reasons advising Applicant of the basis 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 October 31, 2006, after the hearing, Administrative Judge Christopher Graham granted Applicant’s request for a security clearance. Department Counsel filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issues on appeal: whether the Judge erred by relying on outdated policy guidance in reaching his decision; and whether the Judge’s decision was arbitrary, capricious, and contrary to law. Finding error, we remand the case to the Judge. Whether the Record Supports the Judge’s Factual Findings A. Facts The Judge made the following pertinent findings: Applicant used marijuana with varying frequency between 1994 and 2004. He has also abused Ritalin and Percocet, twice used cocaine, and has used hashish. Additionally, he has used ecstasy twice and psilocybin (mushrooms) and/or LSD at least five times. Applicant’s drug abuse occurred most frequently while he was in high school and college. After graduating, he used only marijuana. He used drugs in social settings, was never impaired by drugs for the performance of his work duties, and has used no drugs at all since August 2004. Applicant was promoted at work. He credited that promotion, and the responsibilities it entailed, with the decision to stop using drugs. B. Discussion The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they are supported by substantial evidence–such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record.” Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620-21 (1966). In evaluating the Judge’s findings, we are required to give deference to the Judge’s credibility determinations. Directive ¶ E3.1.32.1. Department Counsel has not challenged the Judge’s findings. Therefore, they are not at issue in this appeal. Whether the Record Supports the Judge’s Ultimate Conclusions A Judge is required to “examine the relevant data and articulate a satisfactory explanation for” the decision, “including a ‘rational connection between the facts found and the choices 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 general standard is that a clearance may be granted only when ‘clearly consistent with the interests of national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). The Appeal Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary, capricious, or contrary to law. Directive ¶¶ E3.1.32.3 and E3.1.33.3. Decision at 5. Applicant cites to the Adjudicative Desk Reference, Supplemental Information, found at www.smdc.army.mil. This document was prepared by the Defense Personnel Security Research Center in Monterey CA. See the introductory comments to the ADR: “[T]he Supplemental Information is not U.S. policy and may not be cited as authority for denial or suspension of access.” In analyzing Applicant’s case, the Judge quoted a 1992 Department of Defense PERSEREC report related to revising the adjudicative guidelines for alcohol abuse, drug abuse and mental/emotional disorders: Consider a person drug-free for at least two years, marijuana was used regularly, or any other drug was used occasionally, and there are no aggravating circumstances. There was no evidence of psychological or physical dependence at the time subject was using drugs, and subject has demonstrated a stable life style with satisfactory employment record since then.1 The Judge went on to observe, “Applicant fits this profile. Applicant’s use of marijuana fell between occasional and frequent use. All other drugs were experimental use.” Department Counsel argues on appeal that the Judge’s use of the above referenced criteria, sua sponte, was error. Also, “the 1992 material upon which the Administrative Judge’s analysis relied was outdated and irrelevant to the case at hand because it addressed the highly specific definitions that were contained in a set of adjudicative guidelines that are no longer in effect.” Applicant replies that Department Counsel has not established that the criteria quoted above are in fact outdated. Applicant further argues that, in any event, it was not error for the Judge to rely on those criteria, since they are readily available under the auspices of the U.S. Army.2 Department Counsel’s position is correct. The specific criteria which the Judge utilized in evaluating the recency of Applicant’s drug use were set forth in guidelines no longer in force. Under policy in effect at the time Applicant’s SOR was issued, Judges are not to apply rigid time standards but rather are to “evaluate the record evidence as a whole and reach a reasonable conclusion as to the recency of an applicant’s conduct.” See, e.g., ISCR Case No. 03-02374 (App. Bd. Jan. 26, 2006). It is axiomatic that “a Judge cannot rely on . . . an earlier version of the Directive to justify the Judge’s decision and that an applicant’s security clearance eligibility must be adjudicated under current DoD policies and standards, not past ones.” ISCR Case No. 02-17369 at 3-4 (App. Bd. May 23, 2006). The fact that the these criteria are still available on line in the Supplemental Information to the Adjudicative Desk Reference is of no consequence, since that publication is not U.S. policy and is not a legal basis for evaluating an applicant’s suitability for a clearance. We conclude that, in light of the Judge’s use of outdated criteria, the case should be remanded to him for a new decision which relies explicitly on those guidelines current at the time Applicant’s SOR was issued.

ORDER

The Judge’s decision granting Applicant a clearance is REMANDED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board