CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 09-00233.a1 — CASE

ISCR Case 09-00233.a1denied

Case Headnote

ISCR Case No. 09-00233.a1

Nov 13, 2009· Hon. Michael D. Hipple· appeal

Summary

A 22-year-old student's security clearance application was denied due to concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). Specifically, disqualifying conditions H1 and E2 were raised because the applicant continued to use illegal drugs, including marijuana, after submitting her application.

The judge determined that the applicant's mitigating evidence was insufficient to resolve the security concerns. This decision was subsequently affirmed by the appeal board.

The board concluded that the judge's assessment of the mitigating evidence was proper and that the applicant's ongoing drug use was inconsistent with national security interests, leading to the denial of her security clearance.

Conditions Referenced

Disqualifying

H1raisedIllegal Drug Involvement
E2raisedPersonal Conduct That Creates a Risk to National Security

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 issuedApr 14, 2009
Answer filed—
Hearing heldAug 31, 2009
Decision dateNov 13, 2009

Cite For

Affirmation of Adverse Decision Due to Ongoing Illegal Drug Use Post-application
Proper Assessment of Mitigating Evidence by the Judge
Application of the Egan Standard in Security Clearance Decisions

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 due to ongoing illegal drug use after submitting her application. The applicant argued that the Administrative Judge did not properly weigh her mitigating evidence and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowClaude R. Heiny — denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge did not properly weigh her mitigating evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse security clearance decision is arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no 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 D. Hipple
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: Applicant’s use of illegal drugs continued after she had submitted her security clearance application. Adverse decision affirmed. CASENO: 09-00233.a1 DATE: 11/13/2009 DATE: November 13, 2009 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-00233

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 April 14, 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 August 31, 2009, after the hearing, Administrative Judge Claude R. Heiny 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 did not properly weigh her mitigating evidence and whether the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. Finding no error, we affirm. The Judge found that Applicant is a 22-year-old student at an art institute, working part time for a Defense contractor. She is succeeding academically, ranking in the top 10 % of her class. In 2007 Applicant first tried marijuana. She subsequently used marijuana as often as three or four times a week, though her use eventually declined in frequency. She no longer associates with individuals who use drugs. Her last two uses of marijuana occurred after she had submitted her security clearance application. In addition to marijuana, Applicant has used ecstasy once, Oxycodone once and Clonazepam three times (each of these uses was without a prescription), and cocaine three times. During a security clearance interview, Applicant stated that she might use marijuana socially if it were present. In response to subsequent interrogatories, Applicant stated that she had no intention to use marijuana in the future. Although Applicant contends that the Judge did not give proper weight to her evidence in mitigation, 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). Applicant has not demonstrated that the Judge weighed the evidence 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). Viewing the record in its entirety and considering the Egan standard, the Judge’s adverse security clearance decision is sustainable. See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”)

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, 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