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ISCR Case 14-00914.a1 — CASE

ISCR Case 14-00914.a1denied

Case Headnote

ISCR Case No. 14-00914.a1

Apr 8, 2015· Hon. Jeffrey D. Billett· appeal

Summary

A 29-year-old applicant with a Master's degree was denied a security clearance under Guideline H (Drug Involvement). The denial stemmed from the applicant's marijuana use between 2005 and 2013.

The decision cited several disqualifying conditions. Primarily, the applicant did not submit a statement of intent to abstain from future drug use. Furthermore, there was insufficient evidence provided to establish the frequency of the applicant's past marijuana use.

Ultimately, the applicant failed to present adequate evidence of good character or work performance, which could have served as mitigation. Due to these unmitigated concerns regarding drug involvement, the security clearance was denied.

Conditions Referenced

Disqualifying

HraisedDrug 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 issuedJun 13, 2014
Answer filed—
Hearing heldJan 7, 2015
Decision dateApr 8, 2015

Cite For

Insufficient Evidence of Mitigation Regarding Drug Involvement Under Guideline H
Importance of Providing a Statement of Intent in Drug-related Cases
Burden of Persuasion Lies with the Applicant for Mitigation.

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 was brought by the Applicant after the Administrative Judge denied his request for a security clearance based on drug involvement under Guideline H. The Applicant argued that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding that the lack of evidence regarding the Applicant's drug use and mitigation was sufficient to support the adverse ruling.

Appealed bythe applicant

Applicant representationAttorney

Judge belowWilford H. Ross — denied the clearance

Decided onthe written record

Guidelines belowGuideline H

What the Board reviewed

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

Why the Board ruled this way

The Board found that the Judge's findings and conclusions regarding the lack of evidence were sustainable and supported the adverse decision. The Applicant did not meet the burden of persuasion regarding mitigation, and the Judge articulated a satisfactory explanation for the decision based on the record.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealBurden of persuasion

Appeal Board panel

Michael Ra’anan — Chair
Jeffrey D. Billett
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: In his answer to the SOR, Applicant stated that, if necessary, he would sign a statement not to use drugs again. However, he provided no such statement. The Judge also made a sustainable finding that, given the lack of evidence, it is impossible to know how many times Applicant used marijuana. Adverse decision affirmed. CASENO: 14-00914.a1 DATE: 04/08/2015 DATE: April 8, 2015 In Re: ---------------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-00914

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Peter Noone, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On June 13, 2014, 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 decision on the written record. On January 7, 2015 after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Wilford H. Ross 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 adverse decision was arbitrary, capricious, and contrary to law. The Judge’s Findings of Fact Applicant is 29 years old and holds a Master’s degree. He seeks a clearance in connection with his employment by a Defense contractor. Applicant used marijuana between April 2005 and August 2013. Applicant states that it was recreational use only. In his Answer to the SOR, he stated that, if necessary, he would sign a statement of intent not to use drugs again, with revocation of clearance should there be future such misconduct. However, he provided no such statement. Neither did he provide evidence of his work performance, track record regarding safeguarding protected information, good character, etc. The Judge’s Analysis The Judge stated that Applicant offered insufficient evidence in mitigation. He noted that Applicant had provided no statement of intent. He also stated that, given the lack of evidence, it is impossible to know how many times Applicant used marijuana. He also stated that there is not evidence of behavioral changes, etc.

DISCUSSION

Applicant cites to a Hearing Office case that, he argues, is similar to his own and that demonstrates that he should have a clearance. We have given this case due consideration as persuasive authority. However, Hearing Office cases are not binding on other Hearing Office Judges or on the Appeal Board. See, e.g., ISCR Case No. 11-14723 at 3 (App. Bd. Oct. 3, 2014). Each case must be decided on its own merits. This case is not sufficient to undermine the Judge’s adverse decision. The Judge’s findings and conclusions about the lack of evidence are sustainable and support his overall adverse decision. The Applicant bears the burden of persuasion regarding mitigation. Directive ¶ E3.1.15. Applicant has offered matters from outside the record, which we cannot consider. Directive ¶ E3.1.29. Applicant argues that the Judge did not consider all of the evidence in the record, citing to Applicant’s Answer to the SOR about his willingness to sign a statement of intent. Applicant has not rebutted the presumption that the Judge considered all of the evidence, nor has he shown that the Judge mis-weighed the evidence. See, e.g., ISCR Case No. 11-10255 at 4 (App. Bd. Jul. 28, 2014). We do not review a case de novo. The Judge examined the relevant data and articulated a satisfactory explanation for the decision. The decision is sustainable on this record. A paucity of record evidence on matters relevant and material to a clearance decision is something that a Judge can address in evaluating an applicant’s case for mitigation. See, e.g., ISCR Case No. 12-00270 at 2-3 (App. Bd. Jan. 17, 2014). “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 Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board