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ISCR Case 11-12730.a1 — CASE

ISCR Case 11-12730.a1denied

Case Headnote

ISCR Case No. 11-12730.a1

Sep 4, 2013· Hon. Jean E. Smallin· appeal

Summary

A former military member was denied a security clearance due to concerns under Guideline H (Drug Involvement). The denial stemmed from a positive urinalysis for marijuana while the applicant held a security clearance. The applicant's explanation for the positive test was found not credible by the judge, and insufficient mitigation was demonstrated regarding drug involvement.

Specifically, Disqualifying Condition H.1 was raised, indicating a history of drug involvement. While Mitigating Condition E.2 was applied, addressing concerns under Guideline E (Personal Conduct), it did not outweigh the issues related to drug use.

Ultimately, the judge concluded that the applicant failed to adequately mitigate the concerns under Guideline H, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

H.1raisedDrug Involvement

Mitigating

E.2appliedPersonal 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 issuedJan 22, 2013
Answer filed—
Hearing heldJun 28, 2013
Decision dateSep 4, 2013

Cite For

Denial Based on Positive Drug Test Under Guideline H
Credibility of Applicant's Explanation for Drug Use
Mitigation Considerations Under Guideline E

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 concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The applicant argued that the decision was arbitrary and capricious. The Board affirmed the denial, finding that the Judge's decision was supported by substantial evidence and that the applicant's claims did not warrant a reversal.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRobert J. Tuider — denied the clearance

Decided onthe written record

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 decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for the denial of the security clearance. The concerns raised under Guidelines H and E were adequately addressed, and the applicant's arguments did not demonstrate harmful error.

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

Jean E. Smallin
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; Guideline E DIGEST: The effect that an unfavorable decision may have is not relevant or material to a security clearance determination. Adverse decision affirmed. CASENO: 11-12730.a1 DATE: 09/04/2013 DATE: September 4, 2013 In Re: ------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 11-12730

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 January 22, 2013, DoD 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 decision on the written record. On June 28, 2013, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Robert J. Tuider denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guideline E are not at issue in this appeal. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant served in the U.S. military from 2004 until 2008, when he was discharged. In January 2009 he entered the Reserves. In July 2010 he failed a urinalysis, testing positive for marijuana. Applicant held a security clearance at the time of the urinalysis. He does not dispute the validity of the test. However, he attributes his positive result to his having attended a party prior to the urinalysis. He stated that it was possible that he had smoked marijuana at the party but, having consumed alcohol, had no recollection of the event. He stated that he is living in a spouse-like relationship. His partner had used marijuana during the 2010 vacation but the partner has neither used nor possessed drugs since living with Applicant. Applicant enjoys a good reputation for the quality of his work performance, his integrity, and devotion to quality. The Judge’s Analysis The Judge concluded that Applicant’s conduct raised concerns under both Guidelines alleged in the SOR. He cleared Applicant under Guideline E, noting that Applicant had admitted his urinalysis results to his employer. The Judge concluded that it was unlikely that Applicant could be subject to coercion under the circumstances and that the concerns arising from his urinalysis were adequately addressed under Guideline H. Regarding that Guideline, the Judge found that Applicant had not demonstrated mitigation. The Judge stated that Applicant’s explanation for the positive result was not credible, undercutting his case for mitigation.

DISCUSSION

Applicant cites to evidence that he had passed a subsequent urinalysis, that several years had elapsed since the incident, and that he was a good worker. This was evidence the Judge was required to consider, along with all the other evidence in the record. However, Applicant has not rebutted the presumption that the Judge considered all of the evidence. See, e.g., ISCR Case No. 10-04413 at 2 (App. Bd. Feb. 16, 2012). Applicant contends that the processing of his case took too long. We have no jurisdiction to rule on this matter. See, e.g., ISCR Case No. 11-08063 at 3 (App. Bd. Jul. 19, 2013). Applicant states that his loss of clearance has resulted in his having to resign his position, disrupting his life and the lives of others. The effect that an unfavorable decision may have on an applicant is not relevant or material to a security clearance determination. See, e.g., ISCR Case No. 10-11083 at 2 (App. Bd. Dec. 17, 2012).

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: Jean E. Smallin Jean E. Smallin 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