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ISCR Case 08-10644.a1 — CASE

ISCR Case 08-10644.a1denied

Case Headnote

ISCR Case No. 08-10644.a1

May 28, 2010· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance based on adverse findings under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The decision was affirmed by an appeal board.

Key factors in the denial included the applicant's marijuana use during two distinct periods, one of which occurred while the applicant already held a security clearance. Additionally, the applicant had a prior denial of access to Sensitive Compartmented Information due to drug use.

The judge determined that the applicant did not demonstrate a favorable prognosis regarding future drug use, leading to the denial. Disqualifying conditions AG ¶ 25 and AG ¶ 14 were raised, while mitigating conditions AG ¶ 26(b) and AG ¶ 26(d) were applied but ultimately did not overcome the security concerns.

Conditions Referenced

Disqualifying

AG ¶ 25raisedDrug Involvement
AG ¶ 14raisedPersonal Conduct

Mitigating

AG ¶ 26(b)rejectedIntent Not to Abuse Drugs in the FutureThe judge found insufficient evidence of a favorable prognosis regarding future drug use.
AG ¶ 26(d)rejectedCompletion of a Drug Treatment ProgramThe psychological report did not relate a course of treatment for substance abuse or dependency.

Key Rule Quoted

“An adverse conclusion under a single guideline is sufficient for an adverse decision.”

Procedural Posture

SOR issuedJun 2, 2009
Answer filed—
Hearing heldFeb 25, 2010
Decision dateMay 28, 2010

Cite For

Adverse Findings Under Guideline H and E Leading to Denial of Clearance
Insufficient Evidence of Rehabilitation or Favorable Prognosis Under Guideline H
No Presumption of Error in the Judge's Findings and Conclusions

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 Administrative Judge failed to consider all evidence and that the decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful error in the Judge's analysis and conclusions.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRobert J. Tuidor — 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 consider all of the record evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge’s adverse decision was arbitrary, capricious, or contrary to law in that he failed properly to apply the Guideline H mitigating conditions.

Why the Board ruled this way

The Board found that the Judge did not err in considering the evidence and that the adverse decision was supported by substantial evidence. The Judge's conclusions under Guideline E were not challenged, which is sufficient for an adverse decision under the applicable guidelines.

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 E DIGEST: There is no presumption of error below. An unchallenged finding need not be reviewed. An adverse conclusion under a single guideline is sufficient for an adverse decision. Adverse decision affirmed. CASENO: 08-10644.a1 DATE: 05/28/2010 DATE: May 28, 2010 In Re: -----

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-10644

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT John Bayard Glendon, Esq., Deputy Chief Department Counsel FOR APPLICANT Alan V. Edmunds, Esq., Stephanie N. Mendez, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On June 2, 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 February 25, 2010, after the hearing, Administrative Judge Robert J. Tuidor 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 failed to consider all of the record evidence and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law in that he failed properly to apply the Guideline H mitigating conditions. For the reasons set forth below, we affirm. The Judge found that Applicant used marijuana during two periods of his life: from 1976 to 1983 and again from 1998 to 2007. The latter use occurred while Applicant held a security clearance. Additionally, in 2007, another government agency denied Applicant access to Sensitive Compartmented Information (SCI) due to his prior drug use. Applicant contends that the Judge did not consider numerous documents, including character letters and a psychological evaluation, which he submitted in his own behalf. However, the Judge admitted these documents into evidence (Tr. at 12). Furthermore, he summarized them in his Findings of Fact and discussed them in the Analysis portion of the Decision, in which he concluded that Applicant had mitigated two of the four Guideline E allegations. Applicant has failed to rebut the presumption that the Judge considered all the evidence. 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). Although Applicant disagrees with the weight which the Judge assigned to this evidence, the record does not support a conclusion that he weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-21819 at 2 (App. Bd. Aug. 13, 2009); ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). It is well settled that (1) there is no presumption of error below, (2) where the Judge entered formal findings against Applicant under a Guideline and Applicant failed to raise a challenge to the findings and conclusions under that Guideline, the findings and conclusions need not be reviewed, and (3) an adverse conclusion under a single guideline is sufficient for an adverse decision. See, e.g., ISCR Case No. 00-0051 at 3 (App. Bd. Jul. 23, 2001); ISCR Case. No. 02-04005 at 3, fn. 1 (App. Bd. Dec. 31, 2003); ISCR Case No. 02-28502 at 2 (App. Bd. Mar. 26, 2004) and ISCR Case No. 97- 0016 at 3 (App. Bd. Dec. 31, 1997). In the case presently under review, Applicant’s appeal brief focuses on the Guideline H security concerns. Department Counsel, in his reply brief, correctly observes: “It is important to note that Applicant has not challenged on appeal, either explicitly or implicitly, the Administrative Judge’s adverse conclusions under Guideline E and the whole-person concept . . . The failure to do so constitutes a waiver of any possible issues on these matters on appeal.” Department Counsel Reply Brief at 7, n. 25.

Applicant contends that the Judge erred in his application of the Guideline H mitigating conditions. The Judge extended some favorable consideration to Applicant’s having submitted a See Directive ¶ E2.26(b): “a demonstrated intent not to abuse any drugs in the future, such as . . . a signed statement of intent with automatic revocation of clearance for any violation[.]” Directive ¶ E2.26(d): “satisfactory completion of a prescribed drug treatment program, including but not limited to rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional.” The report does not relate a course of treatment for substance abuse or dependency. Rather, it is a letter from a psychiatrist describing his interviews with Applicant, tests he performed, etc. In the concluding paragraph, the psychiatrist stated that Applicant “is a fine human being, who is dedicated to his work, ethic, principle, and his family.” He stated that Applicant regrets his mistakes and is willing to submit to further testing if necessary. Insofar as the report contained no diagnosis of an illness, the Judge did not err in observing that it lacked a prognosis. See Cambridge International Dictionary of English, definition of “prognosis”: “[D]octor’s judgment of the likely or expected development of a disease[.]” signed statement of intent not to use drugs in the future. However, he noted other evidence that was less favorable. This includes evidence that Applicant returned to marijuana use in 1998 after having abstained for many years and that his second period of use occurred while he held a security clearance. Applicant contends that the Judge erred in his treatment of the psychological report, insofar as the Judge stated that the report did not contain a favorable prognosis regarding future drug use. Applicant argues that the report did indeed contain such a prognosis and that it should have been considered in light of Guideline H Mitigating Condition 26(b). We have examined this report and find no error with the manner in which the Judge treated it. Viewed in light of the record as a whole, the Judge’s analysis of the Guideline H mitigating conditions was not in error. In light of the foregoing, we conclude that the Judge’s adverse security clearance decision is sustainable under the standard set forth in 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