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ISCR 14-05095.a1: Guideline H security clearance appeal, denied (2016) · CASE

ISCR Case 14-05095.a1denied

Case headnote

ISCR Case No. 14-05095.a1

Feb 18, 2016· Hon. Jeffrey D. Billett· appeal

Summary

A former military member was denied a security clearance due to concerns under Guideline H (Drug Involvement) and Guideline J (Criminal Conduct). The applicant's recent cocaine use, which occurred while already holding a security clearance, was a primary disqualifying condition. Additionally, the applicant had multiple misdemeanor offenses, including reckless driving and public intoxication.

The Appeal Board found that these issues demonstrated a lack of reliability, good judgment, and compliance with laws. Although the applicant presented evidence of good work performance and an intent to abstain from future drug use, these factors were not sufficient to mitigate the security concerns.

Consequently, the Appeal Board affirmed the denial of the security clearance, concluding that the applicant had not adequately resolved the issues raised by the recent drug involvement and criminal conduct.

Conditions referenced

Disqualifying

AG ¶ 24raisedCriminal Conduct
AG ¶ 25raisedDrug 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 issuedMar 26, 2015
Answer filed—
Hearing heldDec 8, 2015
Decision dateFeb 18, 2016

Cite for

Recent Drug Use Impacting Security Clearance Under Guideline H
Criminal Conduct Affecting Security Clearance Under Guideline J
Affirmation of Denial Based on Lack of Mitigation Evidence

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 seeking a security clearance who was denied due to concerns under Guideline H (Drug Involvement) and Guideline J (Criminal Conduct). 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 representationAttorney

Judge belowJuan J. Rivera denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline J

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 decision was supported by substantial evidence and that the applicant did not demonstrate that the Judge's conclusions were 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; Guideline J DIGEST: Applicant failed to rebut the presumption that the Judge considered all of the evidence. Hearing Office Decisions are not binding on other Hearing Office Judges or on the Appeal Board. Adverse decision affirmed. CASE NO: 14-05095.a1 DATE: 02/18/2016 DATE: February 18, 2016 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-05095

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On March 26, 2015, 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 J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On December 8, 2015, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Juan J. Rivera 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 Applicant works for a Federal contractor. Following a short time in college, he enlisted in the U.S. military, serving from 2008 until 2013, at which time he was administratively discharged for misconduct, specifically use of cocaine. During his military service Applicant held a top secret clearance. In July 2013, Applicant and a companion purchased and used cocaine. Several days later he participated in a drug test that yielded a positive result for the drug. Applicant received punishment under Article 15 of the Uniform Code of Military Justice and was discharged with a General Discharge Under Honorable Conditions. After leaving the military, Applicant was unemployed until February 2014, at which time he was hired by his current employer. Following his Article 15, Applicant participated in a substance abuse program sponsored by the military. His counselors determined that he was not a frequent user of drugs and that he was not dependent upon them. Applicant stated that, after his discharge, he disassociated himself from his drug-using companions. Applicant has signed a written statement of intent not to use drugs in the future, with an automatic revocation of his clearance in the event of drug use. In addition to his drug misconduct, Applicant committed some misdemeanor and/or traffic offenses. For example, he was convicted several times of reckless driving, on one occasion driving over 100 miles per hour in a 55-mile-per-hour zone. Applicant’s most recent incident of reckless driving occurred in October 2014. Applicant was also convicted of public intoxication and, on another occasion, destruction of private property. Applicant enjoys a good reputation for the quality of his work performance. He is said to have a strong work ethic and to be highly dependable. Applicant’s supervisors recommend him for a clearance. The Judge’s Analysis The Judge concluded that Applicant’s drug use was relatively recent. Though noting favorable evidence, such as Applicant’s statement that he had used cocaine only once and that he promised to refrain from future misconduct, the Judge concluded that he had failed to mitigate the concerns in his case. The Judge stated that Applicant had been 24 years old at the time of his cocaine use, that he had served in the military for three years by that time, holding the rank of petty officer second class, and that he held a top secret clearance. He stated that Applicant should have been aware that drug use was against military regulations and that it would have an adverse impact on his security clearance. In light of this evidence, the Judge concluded that Applicant’s misconduct was not mitigated through the passage of time. The Judge cited to Applicant’s testimony that he entered the military to separate himself from bad company and to change his lifestyle. He also noted Applicant’s good work performance and claims to have separated himself from his friends who use drugs. Regarding Guideline H, he noted the repeated nature of Applicant’s reckless driving and misdemeanor offenses, occurring between 2008 and 2014. He also cited to Applicant’s cocaine use. He concluded that Applicant had not demonstrated a track record of reliability, good judgment, or compliance with laws, rules, and regulations.

DISCUSSION

Applicant cites to his favorable evidence, including a written statement he prepared of his intent to refrain from future drug use. The Judge made a finding about this statement. Decision at 3. Applicant also cites to evidence that, he contends, supports a conclusion that his drug use is not recent. As noted above, the Judge discussed this evidence in the Analysis portion of the Decision. He also cited to evidence that reasonably supported a conclusion that Applicant’s drug use was not mitigated through the passage of time. Applicant’s arguments are not enough to rebut the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 14-06093 at 3 (App. Bd. Dec. 4, 2015). Under the facts of this case, the Judge’s conclusion that Applicant did not satisfy the Drug Involvement Mitigation Conditions, including 26(a), is sustainable.1 His arguments are, to a large extent, a disagreement with the Judge’s weighing of the evidence. However, this is 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. 14-06440 at 4 (App. Bd. Jan. 8, 2016). Applicant refers to some Hearing Office cases that, he argues, support his case for a clearance. We give thee cases due consideration as persuasive authority. Hearing Office cases are not binding on other Hearing Office Judges or on the Appeal Board. See, e.g., ISCR Case No. 14- 03747 at 3 (App. Bd. Nov. 13, 2015). 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

FOOTNOTES

1 See Directive, Enclosure 2 ¶ 26(a): “the behavior happened so long ago, was no infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment[.]” We have never established a “bright line” rule as to the 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. See, e.g., ISCR Case No. 14-01847 at 3 (App. Bd. Apr. 9, 2015), in which the applicant’s having used marijuana while holding a security clearance was a factor that supported the Judge’s conclusion that insufficient time had passed to show meaningful rehabilitation.