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ISCR Case 11-09172.a1 — CASE

ISCR Case 11-09172.a1denied

Case Headnote

ISCR Case No. 11-09172.a1

Mar 19, 2013· Hon. Michael Y. Ra'anan· appeal

Summary

A defense contractor employee was denied a security clearance under Guideline H (Drug Involvement) due to multiple instances of marijuana use while already holding a clearance. The applicant admitted to using marijuana on five separate occasions.

The judge specifically found the applicant's testimony regarding unknowing ingestion of marijuana to be not credible. Furthermore, the applicant did not pursue drug counseling or provide sufficient evidence of an intent to abstain from future drug use.

Ultimately, the judge determined that the applicant failed to mitigate the security concerns raised by the drug involvement, leading to the denial of the security clearance. The decision underscored the critical role of national security in such determinations.

Conditions Referenced

Disqualifying

H.1raisedDrug Involvement

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 issuedAug 15, 2012
Answer filed—
Hearing heldJan 11, 2013
Decision dateMar 19, 2013

Cite For

Credibility Determinations in Drug Involvement Cases
Recency of Drug Use as a Factor in Security Clearance Decisions
Importance of National Security in Clearance Determinations

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 drug involvement under Guideline H. The applicant argued that the Judge erred in credibility determinations and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the proceedings.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRobert E. Coacher — denied the clearance

Decided ona hearing

Guidelines belowGuideline H

What the Board reviewed

Credibility determination — raised by the applicantRejected
Applicant challenged the Judge's credibility determination regarding his testimony about unknowing ingestion of marijuana.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's credibility determination and concluded that the Judge's findings were supported by substantial evidence. The adverse decision was affirmed as sustainable on the record.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan — Chair
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: Applicant’s first use of marijuana occurred in 2007, while he held a clearance. The Judge concluded that under the circumstances of the case, Applicant’ drug use did not occur so long ago as to demonstrate an intent to refrain in the future. The Judge’s ultimate finding that Applicant had not mitigated the security concerns in his case is sustainable. Adverse decision affirmed. CASE NO: 11-09172.a1 DATE: 03/19/2013 DATE: March 19, 2013 In Re: ------------------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-09172

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On August 15, 2012, DoD 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 January 11, 2013, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Robert E. Coacher 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 erred in his credibility determination and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant is an employee of a Defense contractor. He has held a security clearance since 2005. Applicant used marijuana on five occasions between October 2007 and May 2010. He stated that the uses occurred in social settings. On the last occasion, he was attending a party at the home of a friend. Applicant ate some brownies, not realizing that they were laced with marijuana. Only after he felt the effects of the drug was he told that the brownies contained marijuana. In his April 2011 clearance interview, Applicant discussed his drug use. However, he did not mention unknowing ingestion during this interview. Applicant has not sought any kind of drug counseling. The Judge’s Analysis Concluding that Applicant’s circumstances raised concerns under Guideline H, the Judge noted aspects of the record that detracted from Applicant’s effort to demonstrate mitigation. He noted that Applicant’s apparent first use of marijuana occurred in 2007, while he held a clearance. The Judge concluded that, under the circumstances of the case, Applicant’s drug use did not occur so long ago as to demonstrate an intent to refrain in the future. The Judge also stated that he did not find Applicant’s testimony about unknowing ingestion to be credible. He stated that the first time Applicant mentioned this issue was at the hearing, although at the time of his 2011 interview his memory of the event should have been clearer. The Judge ultimately found that Applicant had not mitigated the security concerns in his case.

DISCUSSION

Applicant challenges the Judge’s conclusion that his testimony about unknowing ingestion lacked credibility. Applicant contends that he did not mention this subject in his 2011 interview because the interviewer did not seek details about the particular circumstances of each use of marijuana. We are required to give deference to a Judge’s credibility determination. Directive ¶ E3.1.32.1. See also ISCR Case No. 10-08390 at 5 (App. Bd. Mar. 30, 2012). We have examined this assignment of error in light of the record as a whole. We note that Applicant addressed his drug use in his interview, in his answers to DOHA interrogatories, and in his Answer to the SOR. He did not discuss or even mention unknowing ingestion in any of these venues. In fact, in his Answer to the SOR, Applicant’s admitted that his drug use from 2007 to 2010 “was a mistake and was a poor decision. . .” This is not consistent with his hearing testimony. A reasonable person could believe that the testimony about unknowing ingestion was a recent fabrication. We find no reason to disturb the Judge’s credibility determination. Applicant takes issue with the Judge’s adverse conclusions about mitigation. He contends that his drug use was not recent, contrary to the Judge’s credibility determination. He contends that the Judge did not properly weigh his testimony that his 2010 use was unknowing, and he argues that his last instance of knowing use was actually in 2007, which was so long ago as to demonstrate that his behavior has changed. However, as stated above, the Judge’s credibility determination was supportable, based on the record before him. Accordingly, he did not err in concluding that Applicant’s last incidence of knowing use was in 2010. Moreover, there is no “bright-line” rule as to recency of drug use. In evaluating recency, as is the case with other issues in mitigation, the Judge must consider the evidence as a whole. See, e.g., ISCR Case No. 05-03941 at 2-3 (App. Bd. Aug. 2, 2007). Given evidence that Applicant used marijuana on multiple occasions while holding a clearance, and given the Judge’s adverse credibility determination, we find no error in the Judge’s treatment of the pertinent mitigating conditions. A disagreement with the Judge’s weighing of the evidence is not sufficient to demonstrate error. See, e.g., ISCR Case No. 09-05854 at 3 (App. Bd. Nov. 8, 2010). The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The 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 Decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, 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