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ISCR Case 08-09698.a1 — CASE

ISCR Case 08-09698.a1denied

Case Headnote

ISCR Case No. 08-09698.a1

May 10, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, represented by counsel, was denied a security clearance primarily under Guideline H (Drug Involvement), with additional concerns under Guideline E (Personal Conduct) and Guideline G (Alcohol Consumption). The denial stemmed from a history of significant drug use, including crack cocaine and marijuana possession, which resulted in a misdemeanor conviction.

Despite the applicant's claims of abstinence since 2007, the judge determined there was insufficient evidence of rehabilitation or other mitigating circumstances. The judge noted the applicant's continued poor judgment and lack of documented treatment for drug use.

Ultimately, the judge affirmed the adverse decision, concluding that the applicant failed to overcome the security concerns raised by their drug involvement. The security clearance was therefore denied.

Conditions Referenced

Disqualifying

HraisedDrug Involvement

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 issuedMay 11, 2009
Answer filed—
Hearing heldFeb 18, 2010
Decision dateMay 10, 2010

Cite For

Significant Drug Involvement Under Guideline H
Failure to Demonstrate Rehabilitation Despite Claims
The Standard for Granting Security Clearance Related 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 Guidelines H, G, and E. The applicant argued that the Judge erred in her findings and analysis. The Board found no harmful error and affirmed the decision.

Appealed bythe applicant

Applicant representationAttorney

Judge belowNoreen Lynch — denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline GGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contends that the Judge erred in finding that she had used crack cocaine from 1987 until November 1988.
Whole-person analysis — raised by the applicantRejected
Applicant argues that the Judge's whole-person analysis was in error.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant claims that the Judge's adverse security clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision and affirmed the adverse security clearance decision based on the evidence presented.

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

KEYWORD: Guideline H; Guideline G; Guideline E DIGEST: The Hearing Office cases cited by Applicant differ from her case in significant ways. Moreover, Hearing Office are not binding on the Board nor on Hearing Office Judges (including prior decisions by the same judge). Adverse decision affirmed. CASENO: 08-09698.a1 DATE: 05/10/2010 DATE: May 10, 2010 In Re: -----

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-09698

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Dan Cron, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On May 11, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the The Judge’s favorable findings under Guidelines G and E are not at issue in this appeal. basis for that decision–security concerns raised under Guideline H (Drug Involvement), Guideline G (Alcohol Consumption), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 18, 2010, after the hearing, Administrative Judge Noreen Lynch 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 the Judge’s application of the pertinent mitigating conditions was in error; whether the Judge’s whole-person analysis was in error; and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. Finding no harmful error, we affirm. Applicant contends that the Judge erred in finding that she had used crack cocaine from 1987 until November 1988. However, these dates were alleged in the SOR, and Applicant admitted to the allegation. Accordingly, there is no error in the Judge’s finding. Applicant has not otherwise challenged the Judge’s findings. The following paragraph, taken from the Analysis portion of the decision, summarizes the Judge’s material findings of security concern: Applicant used crack cocaine with a coworker in 1987 and 1988. This led to involvement with an embezzling scheme to defraud her employer. She cooperated with the authorities but was convicted of conspiracy to defraud. She decided to use marijuana in 2000 with her boyfriend who grew the illegal substance. She used marijuana at least once a week for a period of seven years. She was arrested in May 2007 for possession of marijuana. She has not received any drug treatment for her marijuana use. Her poor judgment placed her at risk and she had a misdemeanor level conviction for possession of marijuana and drug paraphernalia. Decision at 10. The Judge also found that, from June 1990 until at least April 1991, Applicant was treated by a psychologist for cocaine addiction. The Judge decided the case adversely to Applicant, given the nature and extent of Applicant’s illegal drug use. Applicant contends on appeal that she has abstained from using drugs since her 2007 arrest for marijuana possession, which she argues demonstrates that she has rehabilitated herself. However, the Judge noted that Applicant began using marijuana in 2000 despite many years abstinence following her treatment for cocaine addiction. Under the facts of this case, the Judge’s conclusion that Applicant has failed to demonstrate rehabilitation or any other mitigating circumstance is sustainable. In support of her appeal, Applicant has cited to other decisions by Hearing Office Judges, including the Judge in this case, which she argues support her efforts to obtain a security clearance. We give due consideration to them. However, each case “must be decided upon its own merits.” Directive ¶ E2.2.3. The decisions which Applicant cites differ from her own in significant ways. Moreover, Hearing Office decisions are binding neither on other Hearing Office Judges (including prior decisions by the same Judge) nor on the Board. See ISCR Case No. 08-04604 at 3 (App. Bd. Feb. 17, 2010). 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 adverse decision is sustainable on this record. “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