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ISCR Case 14-01847.a1 — CASE

ISCR Case 14-01847.a1denied

Case Headnote

ISCR Case No. 14-01847.a1

Apr 9, 2015· Hon. Michael Y. Ra'anan· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance primarily due to concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The denial stemmed from the applicant's marijuana use, which was classified as drug abuse under the Directive. This drug use, combined with his failure to disclose it on his security clearance application, raised significant questions about his reliability and trustworthiness.

Specifically, the applicant's actions triggered disqualifying conditions 25(a), 25(c), and 25(g). The judge found the applicant's credibility to be questionable, which negatively impacted the assessment of any potential mitigation for the allegations.

Ultimately, the appeal board affirmed the denial, concurring with the initial assessment that the applicant lacked credibility and had not sufficiently mitigated the concerns related to his drug involvement and personal conduct.

Conditions Referenced

Disqualifying

25(a)raisedDrug Abuse
25(c)raisedIllegal Drug Possession
25(g)raisedIllegal Drug Use After Being Granted a Security Clearance

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 issuedJul 28, 2014
Answer filed—
Hearing heldJan 22, 2015
Decision dateApr 9, 2015

Cite For

Issues of Drug Abuse Under Guideline H
Failure to Disclose Drug Use Under Guideline E
Credibility Determinations Impacting Mitigation Assessments

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 Judge erred in her conclusions regarding drug abuse and mitigation. The Board affirmed the Judge's decision, finding no harmful error in her analysis and supporting evidence for the adverse decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDarlene D. Lokey Anderson — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline HGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that the Judge erred in concluding that his circumstances raised concerns under Guideline H.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant contended that the Judge erred in her mitigation analysis.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant claimed 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 regarding the applicant's drug use and credibility were supported by substantial evidence and that the Judge did not err in her analysis of the mitigating factors. The Board affirmed the adverse decision based on the applicant's drug use while holding a security clearance and the failure to disclose this in his security clearance application.

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 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; Guideline E DIGEST: Applicant’s use of marijuana qualified as “drug abuse” as defined by the Directive. Applicant failed to rebut the presumption that the Judge considered all of the evidence. We have not established a “bright line” rule as to the recency of drug use. We give deference to a Judge’s credibility determination. Hearing Office Cases are not binding on other Hearing Office Judges or on the Appeal Board. Arguments by either side are not evidence. Adverse decision affirmed. CASE NO: 14-01847.a1 DATE: 04/09/2015 DATE: April 9, 2015 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-01847

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 July 28, 2014, 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 hearing. On January 22, 2015, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Darlene D. Lokey Anderson 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 concluding that his circumstances raised concerns under Guideline H; whether the Judge erred in her mitigation analysis; 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 From 1997 to 1999, Applicant used marijuana about three to four times a week. He did so with his friend. From 1999 to 2004, while in college, Applicant smoked marijuana while at parties, on holidays, and during the summers. He estimates that he has smoked marijuana between 200 and 500 times. In 2005, he began working for a Defense contractor and obtained a security clearance. He passed a pre-employment drug test. Nevertheless, he used marijuana on about four occasions while holding a clearance. Applicant changed jobs and began working for his current employer in 2012. He was required to seek an upgrade of his clearance to Sensitive Compartmented Information access. At this time, he acknowledged his drug use. In 2005, Applicant completed a security clearance application (SCA). He did not disclose his marijuana use, as he was required to do. He acknowledges that he was not truthful on this earlier SCA, contending that he did not understand the gravity of the clearance application process. Applicant contends that he has made changes over the past several years. He got married and has a child. Moreover, he admitted his prior drug use on his most recent SCA. Applicant enjoys an excellent reputation for his intelligence, trustworthiness, self-discipline, and leadership. In late 2013, he received a promotion at work and a pay increase. A senior official at Applicant’s place of employment recommends him for a clearance. The Judge’s Analysis The Judge concluded that Applicant’s drug use raised concerns under Guideline H. She cited to evidence of the frequency of his use as well as to his having smoked marijuana while holding a clearance. She also stated that Applicant’s drug use and his omission from his 2005 SCA raised Guideline E concerns. In concluding that Applicant had not mitigated the concerns raised under either Guideline, she stated that drug use while holding a clearance “raises serious security concerns about his reliability and trustworthiness.” Decision at 7. She also relied on evidence that Applicant did not come forward about his drug use until he needed to upgrade his clearance to SCI access. She stated that Applicant’s credibility was questionable. At the end of her analysis, the Judge stated, “[T]he evidence supports a finding against the Applicant as to the factual and conclusionary allegations expressed in Paragraphs 1 and 2 of the SOR.”1 Decision at 8.

DISCUSSION

Applicant argues that his experience with marijuana does not rise to the level of abuse. He argues that the Judge’s characterization of his conduct as drug abuse is merely speculative. The Directive defines drug abuse as “the illegal use of a drug.” Directive, Enclosure 2 ¶ 24(b). See ISCR Case No. 12-06635 at 2 (App. Bd. Mar. 28, 2014). Under the facts of this case, Applicant’s use of marijuana meets this definition of abuse. To the extent that Applicant is arguing that his case does not raise concerns under Guideline H, we find no error in the Judge’s conclusion that the evidence raises three Disqualifying Conditions, 25(a), (c), and (g).2 Applicant challenges the Judge’s conclusion that he had not mitigated the concerns in his case. For example, he cites to evidence that his last use of marijuana was several years ago, that his circumstances have changed in a way that shows increased maturity (marriage, birth of a child, etc.), and that it was he who corrected the omission from his prior SCA. We note, first of all, that the Judge addressed this evidence in her Decision. 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). Moreover, regarding the length of time since Applicant’s last use, we have never established a “bright line” rule as to recency of drug use. The extent to which security concerns may have become attenuated through the passage of time is a question that must be resolved based on the evidence as a whole. Given the number of times Applicant used marijuana, along with evidence that he did so on multiple occasions while holding a security clearance, we cannot say that the Judge’s evaluation of this issue was erroneous. See, e.g., ISCR Case No. 11-09172 at 3 (App. Bd. Mar. 19, 2013). Concerning the SCA omission, the Judge’s finding that Applicant did not correct this defect for nine years, and then only when he needed a security clearance upgrade, along with her negative credibility determination, support her treatment of this issue. We are required to give deference to a Judge’s credibility determination. Directive ¶ E3.1.32.1. In making his argument about mitigation, Applicant cites to another Hearing Office case. We give 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). The Judge’s examination both of the mitigating conditions and the whole-person factors was consistent with the record that was before her. Applicant’s arguments are not enough 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. 14-01509 at 2 (App. Bd. Jan. 29, 2015). Applicant cites to remarks Department Counsel made during his closing argument which were favorable to him. In particular, he notes Department Counsel’s opinion that he was forthright and that he was worthy of belief in his promise not to use drugs in the future. Arguments by either side, however, are not evidence. See, e.g., ISCR Case No. 02-07191 at 3, note 1 (App. Bd. Mar. 25, 2004). A Judge must use his or her independent judgement in evaluating the evidence and making a final determination of an applicant’s worthiness for a clearance. Applicant’s citation to Department Counsel’s remarks is not enough to show that the Judge erred. 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: 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 Although the Judge concluded that Applicant had not mitigated any of the SOR allegations, she found for Applicant in her Formal Findings regarding the SCA omission. Given the lack of ambiguity in her analysis, we conclude that the Formal Finding was erroneously entered.

2 Directive, Enclosure 2 ¶ 25(a): “any drug abuse . . .;” (c): “illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia;” (g): “any illegal drug use after being granted a security clearance[.]”