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ISCR Case 08-08257.a1 — CASE

ISCR Case 08-08257.a1denied

Case Headnote

ISCR Case No. 08-08257.a1

Jan 15, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

A software developer for a defense contractor was denied a security clearance under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The denial stemmed from the applicant's admitted past marijuana use and an indication of continued use during a security interview.

Further complicating the case, the applicant resided with a roommate who possessed marijuana, which was identified as a potential source of temptation for the applicant to resume use. Although the applicant claimed abstinence from marijuana since October 2008, these claims were deemed insufficient to alleviate the security concerns.

The appeal board ultimately upheld the denial, concluding that there was substantial evidence to support ongoing security risks related to the applicant's drug involvement and personal conduct.

Conditions Referenced

Disqualifying

HraisedDrug Involvement
EraisedPersonal Conduct

Mitigating

HrejectedDrug InvolvementThe applicant's plans to move out were acknowledged but deemed insufficient to mitigate the risks.
ErejectedPersonal ConductThe applicant's living situation with a marijuana user was a significant concern.

Key Rule Quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedFeb 20, 2009
Answer filed—
Hearing heldSep 10, 2009
Decision dateJan 15, 2010

Cite For

Security Concerns Related to Drug Involvement Under Guideline H
Impact of Living Arrangements on Security Clearance Eligibility
The Standard for Granting Security Clearances in Relation to 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 a denial of a security clearance based on concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The Applicant argued that the Judge made erroneous findings and misweighed evidence. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRoger C. Wesley — denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge failed to properly weigh the record evidence regarding Applicant's living situation.
Erroneous finding of fact — raised by the applicantRejected
The Judge's characterization of Applicant's admissions of marijuana use was erroneous.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge's adverse security clearance decision is arbitrary, capricious, or contrary to law.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision, affirming that the Judge's findings were supported by substantial evidence and that any errors were harmless.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

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

KEYWORD: Guideline H; Guideline E DIGEST: The Judge’s characterization of Applicant’s “admissions” of marijuana use after preparing a security clearance application, even if erroneous is harmless. Adverse decision affirmed. CASENO: 08-08257.a1 DATE: 01/15/2010 DATE: January 15, 2010 In Re: -----

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-08257

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Jennifer I. Goldstein, Esq., Department Counsel FOR APPLICANT Pro Se Applicant’s girlfriend “attests to her certainty that he has not used marijuana since they began dating in October 2008, or even entertained the idea of smoking the substance. Her statements corroborate Applicant’s assurances, and are not contradicted by any evidence in the record. Her statements are credible and are accepted.” Id. at 5-6. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On February 20, 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 10, 2009, after the hearing, Administrative Judge Roger C. Wesley denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether certain of the Judge’s findings of fact were supported by substantial record evidence; whether the Judge failed to consider record evidence submitted by Applicant; whether the Judge mis-weighed the evidence; and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is a software developer for a Defense contractor. Single and without children, he holds a B.S. in computer science. Applicant was introduced to marijuana in high school. Between 1999 and 2001 he smoked marijuana three to five times a month, mainly in social settings. After college he worked as a consultant for an accounting firm. In 2005 he left the firm under cordial terms. For several months in 2005, he hiked the Appalachian Trail along with some friends. During the evenings the hikers smoked marijuana. Applicant himself used marijuana with them between 10 and 15 times. After completing the hike, he maintained some contact with his companions, though he has had no personal contact with them since changing states of residence in January 2008. Applicant admitted his marijuana use on his security clearance application (SCA). When asked about this use in an interview, he stated that he was still using marijuana. When advised of the possible consequence this posed to his clearance, he stated that he would stop immediately. Applicant has shared a household with others during the year preceding the close of the record. One of the roommates keeps marijuana in the household, for medical purposes. The roommate had an authorization from the state to possess the marijuana. Applicant stated, in a post hearing submission, that he would be vacating the apartment in August following the hearing. Applicant enjoys an excellent reputation for reliability and trustworthiness. Applicant has not used marijuana, at least since October 2008. “Applicant used marijuana intermittently in social situations (between 20 or 30 times altogether) with friends before permanently discontinuing his use in July 2008. His admissions to using marijuana after applying for a security clearance do raise initial security concerns[.]” Id. at 7. GE 2 states that the interview with Applicant was conducted on July 19, 2008. GE 1, the SCA, demonstrates that Applicant signed the SCA on May 15, 2008. Applicant challenges the Judge’s statements concerning the date at which Applicant ceased using marijuana, specifically the reference in the Analysis portion of the decision to Applicant’s “admissions” of marijuana use after having completed his SCA. The Board has examined the Judge’s statement in light of the record evidence. Government Exhibit (GE) 2 consists of Applicant’s answers to interrogatories. It includes a summary of the interview to which the Judge refers. The document also includes two questions, one inquiring as to the accuracy of the interview summary and another inquiring if Applicant agreed with the summary. He answered “yes” to both questions. In this interview, Applicant is presented as stating that, as of the date of the interview, he was still using marijuana. The interview occurred after the date Applicant signed his SCA. Accordingly, the Judge’s description of this interview is accurate. The Judge also stated that Applicant made a further admission of July 2008 marijuana use during his testimony at the hearing. A review of the transcript reveals that this attribution is not correct. However, it does not demonstrate that the Judge’s use of the plural “admissions” was error. At worst, the Judge’s erroneous characterization of Applicant’s hearing testimony is harmless. See ISCR No. 01-23362 (App. Bd. Jun. 5, 2006); ISCR Case No. 03-09915 (App. Bd. Dec. 16, 2004); ISCR Case No. 01- 11192 (App. Bd. Aug. 26, 2002) for definition of harmless error. The Board concludes that the Judge’s material findings of security concern are supported by substantial record evidence. See Directive ¶ E3.1.32.1. (Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record”). Applicant contends that the Judge did not weigh the record evidence properly and/or that he ignored record evidence pertaining to Applicant’s roommate’s possession of marijuana. For example, Applicant states that the Judge did not give proper consideration to a post-hearing document in which he promised to move out of his apartment in August 2009. A Judge is presumed to have considered all the evidence in the record. See, e.g., ISCR Case No. 07-00196 at 3 (App. Bd. Feb. 20, 2009); ISCR Case No. 07-00553 at 2 (App. Bd. May 23, 2008). In this case, the Judge acknowledged Applicant’s plans to change his living arrangement in the near future. He stated that these plans have some mitigating significance. However, he also noted that, at the close of the record, Applicant was still living with a person who possessed marijuana and that this posed a risk of temptation for continued use. The Judge’s treatment of Applicant’s living arrangement is a reasonable interpretation of the record evidence. Applicant has not demonstrated that the Judge ignored record evidence or that he weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. See ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice 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 Judge’s decision that “it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 10. “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” 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 Chairperson, 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