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ISCR 10-07312.a1: Guideline H security clearance appeal, denied (2011) · CASE

ISCR Case 10-07312.a1denied

Case headnote

ISCR Case No. 10-07312.a1

Nov 3, 2011· Hon. Michael Y. Ra'anan· appeal

Summary

A 58-year-old married man with a master's degree was denied a security clearance under Guideline H (Drug Involvement) due to a significant history of intermittent marijuana use. The disqualifying condition H.1 was raised, indicating a history of drug involvement.

While mitigating conditions H.2 and H.3 were applied, they were ultimately insufficient to overcome the security concerns. The judge determined that the applicant's lengthy history of marijuana use was substantial enough to outweigh these mitigating factors. A reasonable inference from the record was that the applicant enjoyed marijuana.

Despite a period of abstinence while holding a previous security clearance, this did not sufficiently mitigate the concerns raised by his drug involvement. Consequently, the security clearance was denied.

Conditions referenced

Disqualifying

H.1raisedDrug Involvement

Mitigating

H.2rejectedAbstention From Drug UseThe judge concluded that the applicant's prior abstinence did not outweigh his lengthy history of marijuana use.
H.3rejectedEvidence of RehabilitationThe judge found that the positive aspects of the applicant's record were insufficient to mitigate the drug involvement concerns.

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 issuedMar 22, 2011
Answer filed—
Hearing heldAug 22, 2011
Decision dateNov 3, 2011

Cite for

Denial of Security Clearance Due to History of Drug Involvement Under Guideline H
Weighing of Evidence in Security Clearance Decisions
Inferences Drawn From an Applicant's Conduct Regarding Drug Use

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 drug involvement under Guideline H. The applicant argued that the Judge's findings were not supported by substantial evidence and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it reasonable and supported by the record.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMary E. Henry denied the clearance

Decided ona hearing

Guidelines belowGuideline H

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant contends that the Judge did not properly weigh record evidence concerning his abstention from marijuana when he previously had a security clearance.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argues that the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the decision was not arbitrary or capricious. The Judge properly weighed the evidence and articulated a satisfactory explanation for the decision.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael Y. Ra’anan (Chair)
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 DIGEST: The finding that Applicant enjoys marijuana is a reasonable characterization or inference that could be drawn from the record. Adverse decision affirmed. CASENO: 10-07312.a1 DATE: 11/03/2011 DATE: November 3, 2011 In Re: -------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-07312

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 March 22, 2011, 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 hearing. On August 22, 2011, after the hearing, Administrative Judge Mary E. Henry 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 one of the Judge’s findings of fact was supported by substantial record evidence, and whether the Judge’s adverse security clearance decision was arbitrary, capricious, or contrary to law. Consistent with the following discussion, we affirm the decision of the Judge. The Judge found that Applicant is 58 years old, married and has a masters degree. Applicant has smoked marijuana intermittently and with varying frequencies since high school. He did not smoke marijuana for four years in the 1980swhen he held a security clearance with a Federal agency. Since 2007, Applicant has smoked marijuana once, in 2009. Applicant has never failed a drug test. His wife and brother-in-law are aware of his marijuana use; but his employers, neighbors and adult children are not. In the Analysis portion of the decision, the Judge noted positive aspects of Applicant’s record, to include his letter of intent not to use marijuana again and his prior abstinence when he held a security clearance. However, the Judge concluded that Applicant’s lengthy history of marijuana use outweighed the evidence in mitigation. Accordingly, she concluded that Applicant had not met his burden of persuasion. Applicant contends that the Judge erred in her finding that Applicant enjoys marijuana. The challenged finding constitutes a reasonable characterization or inference that could be drawn from the record. See, e.g., ISCR Case No 08-09918 at 2 (App. Bd. Oct. 28, 2009). Applicant argues that the Judge did not properly weigh record evidence concerning his abstention from marijuana when he previously had a security clearance. In fact, the Judge noted Applicant’s prior abstinence, but she concluded it did not outweigh Applicant lengthy history of marijuana use. A party’s disagreement with the Judge’s weighing of the evidence is not sufficient to demonstrate that the Judge weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 10-07080 at 2 (App. Bd. Oct. 12, 2011). The record supports a conclusion 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). The Judge’s decision not to grant Applicant a security clearance is sustainable on this record.

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: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board