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ISCR Case 06-18340.a1 — CASE

ISCR Case 06-18340.a1denied

Case Headnote

ISCR Case No. 06-18340.a1

Oct 3, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, represented by counsel, was denied a security clearance under Guideline H (Drug Involvement) due to a lengthy history of illegal drug use. The applicant admitted to using marijuana on at least 1,000 occasions. The judge determined that the applicant's arguments for mitigation, which included claims of rehabilitation, were insufficient to overcome the government's security concerns.

The appeal board affirmed the denial, upholding the judge's decision. The board emphasized the strong presumption against granting security clearances and the applicant's burden to establish sufficient mitigation.

Despite the application of mitigating conditions H.26(a), H.26(b), and H.26(d), the extensive history of drug involvement remained a disqualifying condition, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

HraisedDrug Involvement

Mitigating

H.26(a)rejectedMitigating Condition 26(a)The judge found that the applicant's drug use was too extensive and recent to be considered unlikely to recur.
H.26(b)rejectedMitigating Condition 26(b)The judge determined that the applicant did not demonstrate a sufficient intent not to abuse drugs in the future.
H.26(d)rejectedMitigating Condition 26(d)The judge found that the applicant's completion of a drug treatment program did not sufficiently mitigate the security concerns.

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 issuedSep 28, 2006
Answer filed—
Hearing heldFeb 20, 2007
Decision dateOct 3, 2007

Cite For

Strong Presumption Against Granting Security Clearances Under Guideline H
Insufficient Evidence of Rehabilitation in Drug Involvement Cases
Burden on Applicant to Establish Mitigation 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 an applicant seeking a security clearance who was denied based on security concerns under Guideline H related to drug involvement. The applicant argued that the Judge erred in not applying mitigating conditions. The Board affirmed the Judge's decision, finding no harmful error in the ruling.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRobert J. Tuider — denied the clearance (split findings)

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 was not arbitrary, capricious, or contrary to law. The Judge properly weighed the evidence and made sustainable findings regarding the applicant's lengthy history of drug use.

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

Michael Y. Ra’anan — Chair
William S. Fields
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

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 decision in another DOHA Hearing Office case does not demonstrate error by the Judge. Nor is it legally binding precedent on other Judges or the Board. Adverse decision affirmed. CASENO: 06-18340.a1 DATE: 10/03/2007 DATE: October 3, 2007 In Re: ------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-18340

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Melvin A. Howry, Esq., Department Counsel FOR APPLICANT Alan V. Edmunds, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On September 28, 2006, DOHA issued a statement of reasons advising Applicant of the basis for that decision—security concerns raised under Guideline H (Drug Involvement) of The Judge found in favor of Applicant with respect to SOR paragraphs 1.cthrough 1.f. Those favorable findings are not at issue on appeal. The Board construes Applicant’s brief as arguing that the Judge erred in not applying Guideline H Mitigating Conditions 26(a)( “the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment”); 26(b)(“a demonstrated intent not to abuse any drugs in the future, such as :(1) disassociation form drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used; (3) an appropriate period of abstinence; (4) a signed statement of intent with automatic revocation of clearance for any violation”); and 26(d)(“satisfactory completion of a prescribed drug treatment program, including but not limited to rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional”). Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 20, 2007, after the hearing, Administrative Judge Robert J. Tuider 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 marijuana use was not recent, and Applicant had demonstrated that he would not use drugs in the future and had provided clear evidence of rehabilitation. In support of this argument, Applicant submits additional documentary evidence which was not submitted at the hearing. He also cites to several DOHA Hearing Office decisions in which an applicant in ostensibly similar circumstances was granted a clearance. 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. The Board may not consider Applicant’s new evidence on appeal. See Directive ¶ E3.1.29. Its submission does not demonstrate error on the part of the Administrative Judge. See, e.g., ISCR Case No. 02-12789 at 3 (App. Bd. May 13, 2005). The decision in another DOHA Hearing Office case does not demonstrate error by the Judge in this case. A decision by a Hearing Office Judge is not legally binding precedent on that Judge’s colleagues or the Board. See ISCR Case No. 01-22606 at 3-5 (App. Bd. Jun. 30, 2003). “[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 The Judge found Applicant’s use of cocaine, psilocybin mushrooms, PCP, and LSD to be mitigated. Applicant’s Exhibit B is a statement, signed by Applicant, in which he swears never to use illegal drugs again. He further states that he expects that any violation of this promise will result in the automatic revocation of his clearance. See Guideline H Mitigating Condition 26(b)(4). This is evidence which a Judge must consider, but it is not binding. Rather, its mitigating effect must be evaluated in light of the record as a whole. 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 history of marijuana use. That history included illegal marijuana use, on at least 1,000 occasions and at times including daily use, from approximately 1977 to January 2005. It also included the illegal purchase of marijuana during the same period of time. 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 found in favor of the Applicant with respect to four of the factual allegations. However, the Judge reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome all 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 Guideline 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board