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ISCR Case 11-04395.a1 — CASE

ISCR Case 11-04395.a1denied

Case Headnote

ISCR Case No. 11-04395.a1

Oct 5, 2012· Hon. Jeffrey D. Billett· appeal

Summary

A defense contractor employee was denied a security clearance under Guideline H (Drug Involvement) due to ongoing drug use. The applicant had a history of drug use, and while there was a prior period of abstinence, recent incidents of drug use, including possession and use of marijuana, occurred shortly before the security clearance hearing.

The judge applied Disqualifying Condition H1, noting the applicant's recent and significant drug involvement. Although Mitigating Condition H2 was considered, the judge ultimately concluded that the applicant had not sufficiently demonstrated that his drug problems were resolved.

The denial was based on the finding that the applicant's drug issues were not in the past, as evidenced by the recent drug use leading up to the hearing.

Conditions Referenced

Disqualifying

H1raisedDrug Involvement

Mitigating

H2rejectedAbstinenceThe applicant's claims of abstinence were undermined by his recent drug use.

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 issuedMay 4, 2012
Answer filed—
Hearing heldJul 31, 2012
Decision dateOct 5, 2012

Cite For

Ongoing Drug Use as a Basis for Denial Under Guideline H
The Impact of Recent Drug Use on Claims of Mitigation
The Standard for Security Clearance Decisions Being Consistent with National Security Interests

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 seeking a security clearance who had a history of drug use. The Administrative Judge denied the clearance based on the applicant's recent return to drug use. The applicant appealed, arguing that the Judge mis-weighed evidence and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it sustainable based on the record.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMichael H. Leonard — denied the clearance

Decided ona hearing

Guidelines belowGuideline H

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge mis-weighed the record evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's adverse conclusion was sustainable based on the Applicant's return to drug use, and the effect of the adverse decision on the Applicant was not relevant to the evaluation of his security eligibility.

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

Jeffrey D. Billett
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 DIGEST: Given Applicant’s return to drug use, the Judge’s adverse conclusion is sustainable. The effect an adverse decision may have on Applicant is not relevant in evaluating his security elgibility. Adverse decision affirmed. CASENO: 11-04395.a1 DATE: 10/05/2012 DATE: October 5, 2012 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-04395

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 May 4, 2012, 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 July 31, 2012, after the hearing, Administrative Judge Michael H. Leonard 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 mis-weighed the record evidence and whether the Judge’s decision was arbitrary, capricious, or contrary to law.1 Consistent with the following, we affirm the Judge’s decision. The Judge made the following pertinent findings of fact: Applicant is an employee of a Defense contractor. He has a bachelor’s degree and has completed some work toward a master’s. Applicant has a history of illegal drug use. He has admitted to using marijuana about 500 times during the 2000s, cocaine about ten times in the late 2000s, and psilocybin mushrooms during the late 2000s. He also misused prescription drugs on several occasions in the late 2000s. The majority of Applicant’s drug abuse ended in 2009. However, he purchased marijuana on two occasions in 2012, using the drug four days prior to the hearing. He also was in possession of marijuana at his residence. In the Analysis portion of the Decision, the Judge stated that, had Applicant’s drug abuse ended in 2009, he might have been able to demonstrate mitigation. However, Applicant’s use and possession of marijuana just prior to the hearing in his case led the Judge to conclude that Applicant’s drug problems were ongoing. He concluded that it is too soon to tell if Applicant’s drug issues are safely in the past. Applicant contends that he has demonstrated mitigation, stating that he has not smoked marijuana since July 2012. He argues that his abstinence between 2009 and 2012 shows that he possesses self-control. Applicant does not believe that his use in 2012 was a sufficient reason to deny him a clearance and that the evidence, properly weighed, shows that he has put his illegal drug use behind him. After reviewing the Decision in light of the record as a whole, we conclude that the Judge based his decision on the entirety of Applicant’s security-significant conduct. Given Applicant’s return to drug use following a relatively lengthy period of abstinence, the Judge’s conclusion that Applicant had not demonstrated that his problems are behind him is sustainable. Applicant has not demonstrated that the Judge extended too much weight to his 2012 marijuana use or that he otherwise weighed the evidence in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 11-03623 at 3 (App. Bd. Jul. 25, 2012). Applicant states that his continued employment depends upon his retaining a security clearance. However, the effect that an adverse decision may have upon an applicant is not a relevant or material consideration in evaluating his security eligibility. See, e.g., ISCR Case No. 10-06943 at 4 (App. Bd. Feb. 17, 2012). Applicant’s brief cites to conduct that occurred after the close of the record. We cannot consider new evidence on appeal. Decision ¶ E3.1.29. 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 Judge’s adverse decision is sustainable on this record. “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). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett 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

FOOTNOTES

1 Applicant submitted his appeal brief within the time standards set by the Directive. However, he requests the Board grant him an extension of time before performing appellate review. He requests this so as to facilitate his effort to show that his most recent instance of drug use was isolated and that he has given up the use of illegal drugs. The record being closed, and noting the Directive’s prohibition against our consideration of new evidence on appeal (Directive ¶ E3.1.29), we find no reason to treat this case differently from that of any other applicant. Therefore, we deny Applicant’s request.