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ISCR 09-05893.a1: Guideline H security clearance appeal, granted (2010) · CASE

ISCR Case 09-05893.a1granted

Case headnote

ISCR Case No. 09-05893.a1

Sep 14, 2010· Hon. Jeffrey D. Billett· appeal

Summary

This case concerns a defense contractor employee who was granted a security clearance despite a history of marijuana use. The applicant used marijuana from 2003 until May 2009, which raised concerns under Guideline H (Drug Involvement).

The Administrative Judge determined that the applicant had ceased marijuana use for nearly a year prior to the decision and demonstrated a clear intent to abstain from future use. This intent was further supported by excellent job evaluations submitted by the applicant.

Ultimately, the Administrative Judge issued a favorable decision, granting the security clearance. The government appealed this decision, but the Board affirmed the Judge's findings, concluding that they were sustainable. The security clearance was therefore granted.

Key rule quoted

“The Board need not agree with a Judge’s decision in order to find it sustainable.”
ISCR Case No. 08-06856 at 2 (App. Bd. Jan. 21, 2010)

Procedural posture

SOR issuedNov 5, 2009
Answer filed—
Hearing heldJun 4, 2010Decision on written record.
Decision dateSep 14, 2010

Cite for

Sustainable Findings of Fact Under Guideline H
Mitigating Factors Related to Past Drug Use
Whole-person Analysis in Security Clearance Cases

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 Department Counsel challenge to an Administrative Judge's favorable decision granting a security clearance to the applicant, who had a history of marijuana use. The Board reviewed the appeal and found no harmful errors in the Judge's application of mitigating conditions or whole-person analysis, affirming the decision.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowMartin H. Mogul granted the clearance

Decided onthe written record

Guidelines belowGuideline H

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the Government (Department Counsel)Rejected
Department Counsel argued that the Judge's application of the pertinent mitigating conditions is unsupported by the record evidence.
Judge mis-weighed or ignored evidence, raised by the Government (Department Counsel)Rejected
Department Counsel contended that the Judge's whole-person analysis is unsupported by the record evidence.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and did not constitute harmful error. The Board affirmed the favorable decision based on the Judge's findings regarding the applicant's drug use and intentions for the future.

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
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 DIGEST: The Board need not agree with a Judge’s decision in order to find it sustainable. Favorable decision affirmed. CASENO: 09-05893.a1 DATE: 09/14/2010 DATE: September 14, 2010 In Re: ------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-05893

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Julie R. Mendez, Esq., Department Counsel FOR APPLICANT Pro se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On November 5, 2009, 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 June 4, 2010, after considering the record, Administrative Judge Martin H. Mogul granted Applicant’s request for a security clearance. Department Counsel appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issues on appeal: whether the Judge’s application of the pertinent mitigating conditions is unsupported by the record evidence and whether the Judge’s whole-person analysis is unsupported by the record evidence. Consistent with the following discussion, we affirm the decision of the Judge. The Judge made the following pertinent findings of fact: Applicant is an employee of a Defense contractor, seeking a security clearance in connection with his job. Applicant smoked marijuana with varying frequency from around 2003 to at least May 2009. He has not used marijuana since May 2009. His usage was on average once a year, with the greater frequency having occurred at the beginning. He has stated that he intends to abstain from the use of marijuana in the future, irrespective of whether he gets a security clearance. He also stated that his career is important to him and it is a sufficient reason to stop using marijuana. In deciding the case in Applicant’s favor, the Judge stated that Applicant’s usage of marijuana was not frequent and that he had abstained from such usage for nearly a year at the time of the decision. He also stated that Applicant’s excellent job evaluations lend credence to his intention not to use marijuana in the future. The record evidence, viewed as a whole, is sufficient to support a favorable whole-person analysis. The Judge’s ultimate decision is sustainable. The Board need not agree with a Judge’s decision in order to find it sustainable. See ISCR Case No. 08-06856 at 2 (App. Bd. Jan. 21, 2010).

ORDER

The Judge’s favorable security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board