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ISCR 14-01551.a1: Guideline H security clearance appeal, denied (2014) · CASE

ISCR Case 14-01551.a1denied

Case headnote

ISCR Case No. 14-01551.a1

Dec 15, 2014· Hon. Jeffrey D. Billett· appeal

Summary

A government contractor, holding a security clearance since 2007, was denied continued clearance under Guideline H (Drug Involvement) due to marijuana use. The applicant admitted to using marijuana at a party while actively holding his clearance. This action raised Disqualifying Condition H.1.

While the applicant demonstrated remorse and completed substance abuse counseling, Mitigating Conditions H.2 and H.3 were applied but ultimately insufficient. The denial was based on three primary factors: the applicant's marijuana use while entrusted with a security clearance, his failure to immediately report the drug use upon returning to work, and his continued association with individuals who use marijuana.

The judge determined that the applicant's actions violated the trust inherent in holding a security clearance, leading to the adverse decision. The security clearance was therefore denied.

Conditions referenced

Disqualifying

H.1raisedDrug Involvement

Mitigating

H.2rejectedSuccessful Completion of a Drug Treatment ProgramThe judge found that the completion of substance abuse counseling did not mitigate the security concerns.
H.3rejectedEvidence of RehabilitationThe applicant's remorse and good work record were insufficient to overcome the violation of trust.

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 5, 2014
Answer filed—
Hearing heldSep 8, 2014
Decision dateDec 15, 2014

Cite for

Security Concerns Related to Drug Involvement Under Guideline H
Importance of Immediate Reporting of Misconduct in Security Clearance Cases
Insufficiency of Remorse and Rehabilitation Evidence in Mitigating Security Concerns

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 the Applicant's marijuana use while holding a clearance. The Applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and not contrary to law.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCarol G. Ricciardello denied the clearance

Decided ona hearing

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, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's conclusions were supported by the record and that the Applicant's arguments did not demonstrate that the decision was arbitrary, capricious, or contrary to law.

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

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: The Judge concluded that Applicant’s favorable evidence was not sufficient to overcome security concens arising out of Applicant’s use of marijuana while in his late 30's and at the time he held a security clearance. The Judge’s conclusions are supported by the record. Adverse decision affirmed. CASENO: 14-01551.a1 DATE: 12/15/2014 DATE: December 15, 2014 In Re: ---------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-01551

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 June 5, 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 hearing. On September 8, 2014, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Carol G. Ricciardello 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, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact A high school graduate, Applicant has worked for a Government contractor since 2006 and has held a security clearance since 2007. In 2013, Applicant attended a party at the apartment of a friend, who occasionally used marijuana. Applicant drank eight to ten beers at the party. Someone passed a marijuana cigarette to Applicant, and he took a puff, because “it was there.” Decision at 2. Applicant was immediately remorseful for his actions. When he told his wife what he had done, she became angry. When he returned to work, his supervisor told him that he had been selected to take a random urinalysis. He submitted the required sample, and a few days later his supervisor told him that it had tested positive for marijuana. Applicant’s employer directed him to attend a substance-abuse class and suspended his authorization to operate a Government vehicle. Applicant completed the class, which included both group sessions and one-on-one counseling. After this, his Government vehicle driving privileges were restored. Applicant acknowledged that the use of marijuana while holding a security clearance was prohibited. At the hearing, he testified that he informed his supervisor of his use before submitting his urine sample. This was not consistent with his statement to the clearance investigator that he had so informed his supervisor after having been apprised of the results of the urinalysis. Applicant acknowledged that he did not inform his supervisor immediately upon returning to work, because he was concerned about what his employer would do. Applicant claims that this is the only time he has used marijuana in his entire life. He continues to associate with the friend who held the party. Applicant does not intend to use drugs in the future. He has submitted to other drug tests and the results were negative. Applicant is considered to be both dependable and qualified at his job, excelling at problem solving. He is willing to work extra hours to ensure mission accomplishment. The Judge’s Analysis The Judge stated that Applicant’s use of marijuana on the day in question was in violation of the trust placed in him by virtue of his clearance. She noted evidence that he did not immediately report his conduct upon returning to work following the drug use and that he continues to associate with the friend who held the party and who uses marijuana. In the whole-person analysis, the Judge again cited to evidence of Applicant’s dilatory reporting of his misconduct. She also noted his promise not to use drugs in the future. The Judge stated that Applicant was “beyond the age of youthful indiscretion” when he used marijuana as “an adult, a father, and a trusted employee.” Id. at 6. She concluded that Applicant had failed to mitigate the security concerns arising from his use of marijuana.

DISCUSSION

Applicant cites to his favorable evidence, such as his good work record, his successful completion of substance abuse counseling, and his advice to his son and to others about the dangers of drug use. Applicant’s argument is not sufficient to rebut the presumption that the Judge considered all of the evidence. Neither is it sufficient to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-00251 at 4 (App. Bd. Oct. 10, 2014).

In arguing his appeal Applicant asserts matters from outside the record, which we cannot consider. Directive ¶ E3.1.29. 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 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