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ISCR 15-04456.a1: Guideline H security clearance appeal, denied (2016) · CASE

ISCR Case 15-04456.a1denied

Case headnote

ISCR Case No. 15-04456.a1

Aug 1, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A pro se applicant was denied a security clearance under Guideline H (Drug Involvement) due to extensive illegal drug use, specifically marijuana and cocaine. The appeal board affirmed the denial, citing insufficient evidence of rehabilitation and the applicant's past misconduct as a significant national security concern.

The disqualifying condition raised was AG ¶ 25. The judge determined that the applicant's claims of rehabilitation were insufficient given the extent of their prior drug use. A key factor in this determination was that the applicant had only been drug-free for a year and a half, which was deemed an inadequate period to demonstrate sustained rehabilitation.

Ultimately, the security clearance was denied.

Conditions referenced

Disqualifying

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 issuedSep 26, 2015
Answer filed—Applicant requested a decision on the written record.
Hearing heldMay 31, 2016
Decision dateAug 1, 2016

Cite for

Insufficient Evidence of Rehabilitation Under Guideline H
Impact of Extensive Drug Use on Security Clearance Eligibility
Whole Person Analysis in Security Clearance Decisions

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 Judge's findings were not supported by substantial evidence and that the whole person analysis was erroneous. The Board affirmed the decision, finding that any errors were harmless and that the Judge's conclusions were supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDarlene D. Lokey Anderson denied the clearance

Decided onthe written record

Guidelines belowGuideline H

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
The Judge's findings were not supported by substantial record evidence.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
The Judge's whole person analysis was erroneous, resulting in an adverse decision that was arbitrary, capricious, and contrary to law.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that even if the Judge erred in her findings regarding the Applicant's drug use, such errors were harmless and did not affect the overall decision. The Judge's material findings were supported by substantial evidence and reasonable conclusions drawn from the evidence.

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)
James E. Moody
James F. Duffy

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: Even if the Judge erred in finding that Applicant had used some of the drugs addressed in an assignment of error, it did not likely affect her overall decision. Even if she erred, it was harmless. The Judge’s material findings are supported by substantial evidence or constitute reasonable conclusions that could be drawn from the evidence. Adverse decision affirmed. CASE NO: 15-04456.a1 DATE: 08/01/2016 DATE: August 1, 2016 In Re: ------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-04456

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 September 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) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On May 31, 2016, after considering the record, 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’s findings were supported by substantial record evidence and whether the Judge’s whole person analysis was erroneous, resulting in an adverse decision that was arbitrary, capricious, and contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant has worked for his current employer since 2014. He has never held a clearance. He has engaged in illegal drug use, to include marijuana, cocaine, LSD, mushrooms, and ecstasy. Applicant started smoking marijuana at age 16, and used it with varying frequency until June 2014. He used cocaine from 2005 until late 2013, LSD and mushrooms on one occasion between 2008 and 2010, and in mid-2010 used ecstasy at least twice. The Judge found that, in his security clearance application (SCA), Applicant disclosed use of hashish, crack, rock, freebase, amphetamines, speed, and crystal meth, though he provided no information about frequency of use or purchase. Applicant denies that he is addicted to illegal drugs. He states that he has never sold, grown, or manufactured any illegal substance. He states that, in his mid-twenties, he decided to give up drug use. In July 2014 he stopped using illegal drugs, “which was about three months before he applied for his job in the defense industry.” Decision at 2. He has apologized for his past actions and promises never to use illegal drugs again. The Judge’s Analysis The Judge characterized Applicant’s drug use as “shocking.” Id. at 5. She stated that his misconduct constitutes a lapse in judgment, raising questions about his fitness for a security clearance. She stated that his recent uses of marijuana and cocaine call his maturity, character, and judgment into question. In the whole-person analysis, the Judge found that Applicant has been drug- free for only a year and a half, which is not enough time to demonstrate rehabilitation, given the extensive nature of the misconduct.

DISCUSSION

Applicant denies that he ever used hashish, crack, rock, freebase, amphetamines, speed, or crystal meth. He states that, during his meeting with the investigator, he did not admit to having used these drugs. However, we note that Applicant did admit (with an explanation) to all of the allegations in the SOR, explaining that he had started using marijuana while young, leading to experimentation with other drugs. The SOR allegations included amphetamines, speed, and crystal meth. Moreover, in his SCA, he admitted to having used various categories of drugs, such as cocaine, hallucinogens, and stimulants. These categories were accompanied by illustrative examples, apparently generated by the electronic SCA program itself, such as “rock” and “freebase” under the rubric of crack cocaine. It is reasonable to conclude that Applicant’s admission for having used “cocaine or crack cocaine” does not necessarily mean that he admitted to having used all possible variants of that drug. Nevertheless, even if the Judge erred in finding that Applicant had used some of the drugs addressed in this assignment of error, it did not likely affect her overall decision. Even if she erred, it was harmless. The Judge’s material findings are supported by substantial evidence or constitute reasonable conclusions that could be drawn from the evidence. See, e.g., ISCR Case No. 12-03420 at 3 (App. Bd. Jul. 25, 2014). We conclude that the Judge’s whole person analysis complies with the requirements of Directive ¶ 6.3, in that she considered the totality of the evidence in reaching her decision. See, e.g., ISCR Case No. 15-00424 at 2-3 (App. Bd. Apr. 20, 2016). 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board