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ISCR 08-01583: Guideline E security clearance appeal, denied (2009) · CASE

ISCR Case 08-01583denied

Case headnote

ISCR Case No. 08-01583

Dec 4, 2009· Hon. Jeffrey D. Billett· appeal

Summary

A 55-year-old engineer was denied a security clearance under Guideline E (Personal Conduct) and Guideline H (Drug Involvement), with the primary concerns stemming from extensive marijuana use. The applicant's drug use was characterized as long-term and intermittent, notably including periods where he returned to illegal drug use while already holding a security clearance. This behavior directly violated company and Department of Defense policies.

While the applicant presented some mitigating evidence, including claims of rehabilitation and responsible conduct, the judge ultimately found this insufficient to overcome the security concerns. Specifically, the judge determined that the applicant's evidence of rehabilitation did not adequately mitigate the risks associated with his extensive drug involvement.

The denial was affirmed on appeal, reinforcing the initial finding that the applicant's history of drug use, particularly while holding a clearance, presented ongoing security concerns. The decision highlighted the disqualifying condition H.1, despite the application of mitigating conditions H.2 and H.3.

Conditions referenced

Disqualifying

H.1raisedDrug Involvement

Mitigating

H.2rejectedRehabilitationThe judge found the applicant's evidence of rehabilitation insufficient to mitigate the security concerns.
H.3rejectedNo Recent Drug UseThe judge determined that the applicant's past drug use was extensive and concerning despite the absence of recent use.

Key rule quoted

“The Judge examined the relevant evidence and articulated a satisfactory explanation for his decision, 'including a rational connection between the facts found and the choice made.'”
Motor Vehicle Mfs. Ass’n of the United States v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)

Procedural posture

SOR issuedJan 30, 2009
Answer filed—
Hearing heldSep 18, 2009
Decision dateDec 4, 2009

Cite for

Extensive Drug Involvement Under Guideline H
Insufficient Evidence of Rehabilitation to Mitigate Security Concerns
The Importance of Adhering to Company and Dod Drug Policies While Holding a Security Clearance.

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 who was denied a security clearance based on drug involvement and personal conduct. The applicant argued that the Judge's characterization of his marijuana use as extensive was unsupported, that the Judge misapplied mitigating conditions, and that the whole-person concept was misapplied. The Board affirmed the Judge's decision, finding no harmful error in the Judge's analysis.

Appealed bythe applicant

Applicant representationAttorney

Judge belowEdward W. Loughran denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline HGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant argued that the Judge's characterization of his marijuana use as extensive was unsupported by the record evidence.
Mitigation wrongly applied / not applied, raised by the applicantRejected
Applicant contended that the Judge's analysis of the Guideline H mitigating conditions was erroneous.
Whole-person analysis, raised by the applicantRejected
Applicant claimed that the Judge misapplied the whole-person concept.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the Judge properly applied the relevant legal standards in reaching his decision.

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

Jeffrey D. Billett
Jean E. Smallin
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

APPEARANCES

DATE: December 4, 2009 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-01583

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Alfred S. Donau, III, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On January 30, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline H (Drug Involvement) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On September 18, 2009, 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. The Judge made formal findings in favor of Applicant under Guideline E. Those favorable findings are not at issue on appeal. Applicant raises the following issues on appeal: (1) whether the Judge’s characterization of Applicant’s marijuana use as “extensive” is supported by the record evidence; (2) whether the Judge’s analysis of the Guideline H mitigating conditions is erroneous; and (3) whether the Judge misapplied the whole-person concept. For the following reasons, the Board affirms the Judge’s unfavorable decision. The Judge made the following pertinent findings of fact: (a) Applicant was 55 years old at the time of the hearing; (b) Applicant started smoking marijuana in college, and then did not smoke marijuana for an extended period; (c) he smoked marijuana again during the period between about 1992 and 1993, when he did not have a clearance; (d) he did not smoke marijuana between 1993 and May 2005; (e) Applicant smoked marijuana on 25 to 30 occasions between May 2005 and April 2006, using it every weekend or two during a month; (f) Applicant had a security clearance while he was using marijuana in 2005 and 2006, and he was aware of his company’s anti-drug policy, as well as the DoD’s policy against illegal drug use; (g) Applicant was stopped by his facility’s security officers for a random vehicle inspection on May 1, 2006; (h) the facility officers found a small amount of marijuana inside a wooden case; (i) Applicant was arrested for unlawful possession of marijuana and possession of drug paraphernalia; (j) Applicant pled guilty to possession of drug paraphernalia, entered a diversion program, completed the program, and the charges were dismissed; (k) Applicant signed a “last chance” agreement with his employer on June 5, 2006; (l) Applicant successfully completed an outpatient chemical dependency program from May 3, 2006 through June 21, 2006; (m) the discharge summary listed a diagnostic impression of cannabis dependence and a favorable prognosis; (n) Applicant states that he will not use illegal drugs again and he has disassociated himself from any drug-using associates and contacts; and (o) three witnesses attest to Applicant’s job performance, reliability, honesty, trustworthiness, and good judgment. The Judge reached the following conclusions: (i) there is no bright-line rule as to whether conduct is recent, and Applicant has not used illegal drugs in more than three years; (ii) however, his drug use was very extensive, occurred over a long period of time, and was interrupted by other long periods of abstinence followed by additional drug use; (iii) Applicant returned to illegal drug use when he was 50 years old and held a security clearance; (iv) he used the drug knowing it was illegal, contrary to his company’s anti-drug policy, and counter to the DoD’s policy against illegal drug use; (v) the Judge was unable to make a determination that Applicant’s drug use is completely in his past; (vi) security concerns are still present despite the presence of some mitigation. Applicant’s reliance on portions of the Adjudicative Desk Reference (ADF) is misplaced. DOHA judges are required to decide cases by using the Adjudicative Guidelines, not the ADF. The ADF itself contains language indicating that it may not be cited as authority for denial or suspension of access. See, e.g., ISCR Case No. 03-04090 at 6 (App. Bd. Mar. 3, 2005). Given that language, Applicant cannot reasonably contend that the portions of the ADF cited by him constituted official U.S. government policy that the Judge was required to follow. Applicant asserts that Applicant’s drug use was not extensive. His assertion fails to demonstrate error on the part of the Judge. The record demonstrates that Applicant went through significant periods of marijuana use juxtaposed with significant periods of abstinence. A party’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, e.g., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). Although the record is not clear as to how many times Applicant used marijuana during his college years and during the period between 1992 and 1993, these periods of usage, coupled with the 25-30 instances of use admitted to by Applicant during the 2005-2006 time frame, reasonably support the Judge’s characterization of Applicant’s drug use as extensive. The level of usage established by the evidence, in addition to a pattern of usage that stretched, with breaks, over a 30-year period, undercuts Applicant’s characterization of his marijuana use as an aberration. Applicant’s statements concerning the Guideline H mitigating conditions and the whole- person concept can be discussed together. Applicant argues that proper application of Guideline H mitigating conditions should have resulted in a decision in his favor. Specifically, Applicant maintains that the three-year passage of time since his last marijuana use and the evidence of rehabilitation overcome the government’s security concerns. He also emphasizes his successful completion of a drug rehabilitation program and the maturity and responsible behavior he demonstrated by immediately reporting the May 1, 2006 incident to his supervisor when arguing that the Judge misapplied the whole-person concept. A review of the record and the Judge’s decision reveals that the Judge weighed the mitigating evidence offered by Applicant against the length, seriousness, and pattern of the disqualifying conduct and considered the possible application of relevant mitigating conditions and whole-person factors. The Judge reasonably explained why the evidence Applicant presented in mitigation was insufficient to overcome the government’s security concerns. In doing so, the Judge emphasized the fact that Applicant’s position as an intelligent, mature, and highly-regarded engineer made his choice to return to illegal drug use at the age of 50, and while holding a security clearance, particularly disturbing. The Board does not review a case de novo. After reviewing the record, the Board concludes that the Judge examined the relevant evidence and articulated a satisfactory explanation for his decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfs. 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)). Therefore, the Judge’s ultimate unfavorable security clearance decision under Guideline H is sustainable.

ORDER

The decision of the Judge is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board