CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 09-06401.a1 — CASE

ISCR Case 09-06401.a1denied

Case Headnote

ISCR Case No. 09-06401.a1

Mar 3, 2011· Hon. Jean E. Smallin· appeal

Summary

A 42-year-old program manager was denied a security clearance under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The denial stemmed from a positive cocaine test in 2007. The applicant claimed unknowing ingestion of the substance, but the judge found insufficient evidence to mitigate the security concerns.

Specifically, the applicant failed to provide adequate evidence to rebut the concerns raised by the positive drug test. The judge highlighted the absence of corroborating testimony that could have supported the claim of unknowing ingestion. The recency and seriousness of the misconduct were also significant factors in the decision.

The appeal affirmed the denial, emphasizing that the applicant did not meet the burden of proof for mitigation under Guideline H. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

HraisedDrug Involvement

Mitigating

EappliedPersonal Conduct

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 issuedJun 10, 2010
Answer filed—
Hearing heldNov 30, 2010
Decision dateMar 3, 2011

Cite For

Insufficient Evidence to Mitigate Drug Involvement Under Guideline H
Importance of Corroborating Evidence in Rebutting Security Concerns
Burden of Proof on Applicant to Establish Mitigation After Government Raises Concerns

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 a positive urine test for cocaine. The applicant argued that the decision was arbitrary and capricious. The Board affirmed the decision, finding that the applicant did not meet the burden of mitigating the security concerns raised by the positive drug test.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMichael H. Leonard — denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge articulated a satisfactory explanation for the decision, including a rational connection between the facts found and the choice made. The Judge's unfavorable security clearance decision was sustainable 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
Jean E. Smallin
William S. Fields

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 failed to rebut security concerns arising from his positive urine test for cocaine. Adverse decision affirmed. CASE NO: 09-06401.a1 DATE: 03/03/2011 DATE: March 3, 2011 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-06401

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 June 10, 2010, 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 November 30, 2010, after the hearing, Administrative Judge Michael H. Leonard denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse clearance decision is arbitrary, capricious, or contrary to law.

FOOTNOTES

1 The Judge’s favorable finding under Guideline E is not at issue on appeal. The Judge made the following essential findings of fact: Applicant is a 42-year-old program manager/client executive who has been employed by a Defense contractor since 2008. He is married and has two children. In September 2008, Applicant was terminated from Federal employment with a DoD agency after testing positive for cocaine on a random drug test in 2007. He has consistently denied knowingly using cocaine, asserting that he may have unknowingly ingested it while attending a professional football game with friends several days before the test. He contested his termination from Federal employment to no avail. Decision at 3-4. On appeal, Applicant continues to assert that his ingestion of cocaine was unknowing, while acknowledging that his positive test results and subsequent termination from Federal employment “may raise some concern under Guideline H.” Applicant’s Brief at 2. However, he asserts that the Judge should have concluded that any such concern was mitigated under the relevant conditions and factors because: 1) his drug use was isolated, infrequent and unlikely to recur, 2) he has disassociated from the drug using people and their environment, 3) he has had an appropriate period of abstinence, and 4) he has demonstrated an intent not to abuse drugs in the future. Id. Applicant’s arguments do not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. A party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. In this case, the Judge concluded that Applicant had not met his burden of presenting sufficient evidence to rebut, explain, extenuate, or mitigate the security concerns raised by his positive drug test for cocaine while employed by a DoD agency—noting in particular that: “Applicant did not present a written statement or, better yet, the testimony of the person with whom he attended the game. That person may have shed light upon or confirmed Applicant’s recollection of events and provided exculpatory evidence for Applicant. This missing evidence is yet another reason to be unpersuaded by Applicant’s explanation.” Decision at 7. That rational, coupled with his findings as to the Applicant’s age and circumstances, and the recency and seriousness of the misconduct at issue, served as a sufficient, sustainable basis for the Judge’s ultimate adverse conclusion under Guideline H.1 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 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). Therefore, the Judge’s unfavorable security clearance decision is sustainable. Order The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board