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ISCR Case 07-04161.a1 — CASE

ISCR Case 07-04161.a1denied

Case Headnote

ISCR Case No. 07-04161.a1

Oct 1, 2008· Hon. Jean E. Smallin· appeal

Summary

An engineer for a defense contractor was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline H (Drug Involvement), and Guideline K (Handling Protected Information). The denial stemmed primarily from the applicant's history of marijuana use and multiple security violations, specifically failing to secure sensitive areas.

The judge found that the applicant's history of drug involvement and security lapses were significant disqualifying conditions, citing AG ¶ 24 and AG ¶ 30. Although the applicant presented claims of mitigating circumstances, applying AG ¶ 20, these were deemed insufficient to overcome the established security concerns.

The decision to deny the clearance was affirmed on appeal. The ruling emphasized the direct connection between the applicant's conduct and potential risks to national security interests, concluding that the applicant's history did not meet the necessary standards for a security clearance.

Conditions Referenced

Disqualifying

AG ¶ 24raisedDrug Involvement
AG ¶ 30raisedHandling Protected Information

Mitigating

AG ¶ 20appliedPersonal Conduct

Key Rule Quoted

“It is not clearly consistent with the interest of national security to grant Applicant eligibility for a security clearance.”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedNov 1, 2007
Answer filed—
Hearing heldJun 26, 2008
Decision dateOct 1, 2008

Cite For

Insufficient Mitigation of Drug Involvement Under Guideline H
Security Violations Impacting Clearance Eligibility Under Guideline K
Affirmation of Adverse Decisions Based on National Security Interests

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 had a history of marijuana use and multiple security violations. The Administrative Judge denied the clearance, and the applicant appealed, arguing that the Judge erred in concluding that he failed to mitigate security concerns. The Appeal Board affirmed the Judge's decision, finding no harmful error in the ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran — denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline KGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge's conclusion regarding the failure to mitigate security concerns was erroneous.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the applicant's disagreement with the Judge's conclusions did not demonstrate harmful error. The Judge's findings were rationally connected to the adverse decision regarding the security clearance.

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

Jean E. Smallin
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

KEYWORD: Guideline H; Guideline K DIGEST: Applicant’s history of marijuana use and multiple security violations raised security concerns which he failed to mitigate. Mere disagreement with a Judge’s decision is not sufficient to show that it is erroneous. Adverse decision affirmed. CASENO: 07-04161.a1 DATE: 10\01\2008 DATE: October 1, 2008 In Re: -------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-04161

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 November 1, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline H (Drug Involvement), Guideline K (Handling Protected Information) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On June 26, 2008, after the hearing, Administrative Judge Edward W. Loughran denied Applicant’s The Judge’s favorable decision under Guideline E is not at issue in this appeal. request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s conclusion that Applicant had failed to mitigate the security concerns in his case was error. The Judge made the following pertinent findings of fact: Applicant is an engineer for a defense contractor. He has been working with his current employer since 1984. He first smoked marijuana in his teens and continued to use it “sporadically until about 1982.” Decision at 2. He was interviewed for a background investigation in 1984 and, admitting his prior drug use, stated that he did not intend to use illegal substances again. He was granted a security clearance in 1985 and has held one since that date. In about 1987, Applicant began smoking marijuana again. Subsequently, in 2001, he submitted a security clearance application (SCA), in which he said that he had smoked marijuana “less than 168" times between May 1985 and May 2001. Applicant stated in his SCA that his marijuana use was “spiritual or medical” in nature and that he no longer used it. Id. at 3. In 2003 he was interviewed as part of his background investigation. He stated to the interviewer that he no longer smoked marijuana and that he would not use it again unless he had a prescription from a physician. Id. In 2004, Applicant resumed smoking marijuana. On April 18, 2006, he submitted another SCA, in which he stated that he had smoked marijuana 84 times since May 2001. Again, he stated that he no longer used marijuana. In 2008, Applicant was examined by a physician specializing in addiction medicine. The doctor diagnosed Applicant’s condition as “cannabis abuse without physiological addiction.” Id. He stated that Applicant likely could succeed in a recovery program. Applicant works in a secured area. The area has four doors, each protected by two locks. One lock opens by means of a card swipe, the other by a combination. On three occasions in 2005, Applicant failed to secure the combination lock. On the last occasion, he “also failed to issue the last-one-out badge.” Id. at 4. On none of these occasions was there a compromise of classified information. Following each occasion, Applicant received additional training on security procedures. The Board has examined Applicant’s appeal brief in light of the record evidence. Applicant states in his brief that, while “it is understandable that the Administrative Judge could reach” an adverse decision in this case, the Judge “could have also reached a different decision consistent with the directive.” Brief at 2. However, “[a]napplicant’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. ISCR Case No. 07-10454 at 2 (App. Bd. Aug. 12, 2008). In light of the record as a whole, the Judge has drawn a rational connection between the facts found and his ultimate adverse security clearance decision. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). See also 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 Judge’s decision that “it is not clearly consistent with the interest of national security to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 11. See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, 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