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ISCR Case 08-04629.a1 — CASE

ISCR Case 08-04629.a1denied

Case Headnote

ISCR Case No. 08-04629.a1

Apr 3, 2009· Hon. Jeffrey D. Billett· appeal

Summary

A 54-year-old defense contractor employee was denied a security clearance under Guideline H (Drug Involvement). The applicant's extensive history of marijuana and hashish use, dating back to 1967, was a primary concern, particularly because some use occurred while he held a security clearance.

Further complicating the case, the applicant had a conviction for marijuana possession in a foreign country. The judge also noted that the applicant provided conflicting statements regarding his drug purchases and his intent to continue using marijuana.

Based on these factors, including the applicant's ongoing drug use and inconsistent statements, the judge found no applicable mitigating conditions and affirmed the denial of the security clearance. Disqualifying conditions H.1, H.2, and H.3 were raised in the decision.

Conditions Referenced

Disqualifying

H.1raisedDrug Involvement
H.2raisedIllegal Drug Use
H.3raisedRecent Drug Use

Key Rule Quoted

“The Judge drew a 'rational connection between the facts found' and his conclusion that neither the Guideline H mitigating conditions nor the whole-person factors support a decision favorable to Applicant.”
— Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)

Procedural Posture

SOR issuedMay 22, 2008
Answer filed—
Hearing heldFeb 18, 2009
Decision dateApr 3, 2009

Cite For

Security Concerns Under Guideline H Due to Extensive Drug Use
Lack of Applicable Mitigating Conditions for Drug Involvement
Affirmation of Adverse Decisions Based on Substantial Evidence of Drug Use

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 based on drug involvement under Guideline H. The Applicant argued that he had mitigated the security concerns. The Board found no error in the Judge's decision and affirmed the denial.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoseph Testan — denied the clearance

Decided onthe written record

Guidelines belowGuideline H

What the Board reviewed

Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argued that the Judge erred in failing to conclude that he had mitigated the security concerns in his case.

Why the Board ruled this way

The Judge's findings were based on substantial evidence, and the adverse conclusions followed from those findings. The Judge properly concluded that security concerns under Guideline H were raised in Applicant's case and that mitigating conditions did not apply.

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
Jeffrey D. Billett
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

KEYWORD: Guideline H DIGEST: The Judge found that Applicant has used marijuana and or hashish from 1967 to the present The Judge’s findings are sustainable. His adverse conclusions follow from his findings. Adverse decision affirmed. CASENO: 08-04629.a1 DATE: 04/03/2009 DATE: April 3, 2009 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-04629

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 22, 2008, DOHA issued a statement of reasons (SOR) 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 decision on the written record. On February 18, 2009, after considering the record, Administrative Judge Joseph Testan denied Applicant’s request for a security clearance. Applicant filed an appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge erred in failing to conclude that Applicant had mitigated the security concerns in his case. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is a 54 year old employee of a defense contractor. Applicant answered an interrogatory in which he vouched for the content of an investigative report. The report, in turn, says Applicant has smoked marijuana and or hashish from 1967 to the present. The Judge notes that some of Applicant’s drug use has occurred while Applicant was holding a security clearance. Applicant was convicted in a foreign country of marijuana possession. Applicant has given conflicting statements as to whether he has purchased marijuana. Applicant wrote in 2008 that he smokes marijuana every two or three months. Applicant challenges some of the Judges finding of fact on appeal. However, they are based on substantial record evidence, and are therefore, sustainable. In analyzing the case, the Judge concluded that three disqualifying conditions apply and no mitigating conditions are applicable. Nonetheless, the Judge concluded that Applicant is not an unlawful user of marijuana for purposes of the statutory prohibition regarding the grant of security clearances to unlawful users of a controlled substance. The Judge’s whole person analysis focused on the length of Applicant’s marijuana use and recent statements indicating an intent to continue marijuana use. On appeal Applicant offers new evidence which the Board may not consider. See Directive, ¶ E3.1.29. The Board has considered Applicant’s brief, the Judge’s decision, and the record. The Judge properly concluded security concerns under Guidelines H are raised in Applicant’s case. Furthermore, the Judge drew a “rational connection between the facts found” and his conclusion that neither the Guideline H mitigating conditions nor the whole-person factors support a decision favorable to Applicant. See 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 reflects consideration of the entire record. The record supports the Judge’s conclusion that Applicant has failed to meet his burden of persuasion that it is “clearly consistent with national security” for him to have a clearance. Decision at 5. See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board