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ISCR Case 15-06481.a1 — CASE

ISCR Case 15-06481.a1denied

Case Headnote

ISCR Case No. 15-06481.a1

Jan 19, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A 31-year-old married father of two was denied a security clearance under Guideline H (Drug Involvement) due to a history of extensive drug use, including marijuana and cocaine. A key concern was his use of both substances while already holding a security clearance.

The applicant's drug use spanned over ten years and was considered recent. While he presented some evidence of rehabilitation efforts and received favorable character references, the judge determined these were insufficient to mitigate the security risks.

Ultimately, the appeal board upheld the denial, concluding that the applicant had not demonstrated a long enough period of abstinence to establish true rehabilitation and resolve the security concerns associated with his past drug involvement.

Conditions Referenced

Disqualifying

H.1raisedDrug Involvement

Mitigating

H.2rejectedRehabilitationThe judge found that the applicant had not been abstinent long enough to demonstrate true rehabilitation.

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 issuedApr 27, 2016
Answer filed—
Hearing heldNov 8, 2016
Decision dateJan 19, 2017

Cite For

Upholding Denial Based on Recent Drug Use While Holding a Clearance
Emphasis on the Need for a Longer Period of Abstinence for Rehabilitation
Consideration of the Totality of Evidence in Whole-person Analysis

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 drug involvement under Guideline H. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions reached by the Judge.

Appealed bythe applicant

Applicant representationAttorney

Judge belowDarlene D. Lokey Anderson — 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 decision was supported by substantial evidence and that the Judge did not act arbitrarily or capriciously in her analysis of the evidence.

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
James E. Moody
William S. Fields

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: Applicant has not rebutted the presumption that the Judge considered all of the evidence. Hearing Office cases are not binding on other Hearing Office Judges or on the Appeal Board. The whole-person analysis included consideration of the entirety of the record. Adverse decision affirmed. CASE NO: 15-06481.a1 DATE: 01/19/2017 DATE: January 19, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-06481

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 April 27, 2016, 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 November 8, 2016, 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 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 31 years old, Applicant is married with two children. He works for a Defense contractor. He has a history of using marijuana and cocaine. He began using marijuana in high school and continued until April 2014. Convinced that he had become addicted to marijuana, Applicant sought one-on-one counseling, which he successfully completed. He also used cocaine from 2005 until 2010 on about five separate occasions. He used marijuana and cocaine (at least once) while working for his current employer and holding a clearance. Applicant has been clean and sober since April 2014. He is an active member of his church. Applicant enjoys an excellent reputation for reliability, trustworthiness, and responsibility. Applicant continued counseling after having completed his one-on-one program. His counselor states that he can be trusted with matters of security. Applicant’s job appraisals show that he meets requirements in each category. The Judge’s Analysis The Judge stated that Applicant had used marijuana until two years prior to the Decision. She stated that his use of drugs while holding a clearance was troubling. Applicant knew that his conduct was in contravention of the law, as well as of DoD policy and the policy of his employer. She stated that his drug use was still recent. Although she commended Applicant for his counseling, she concluded that more time is required to mitigate concerns arising from extensive drug use over a ten-year period.

DISCUSSION

Applicant cites to favorable evidence, such as his character references, the opinion of his counselor, his statement of intent not to use drugs in the future, etc. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 15-02854 at 2 (App. Bd. Nov. 22, 2016). Neither has he shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-06686 at 2 (App. Bd. Apr. 27, 2016). Applicant challenges the Judge’s finding that he had only been sober for 24 months. We find this argument persuasive, in that more time than that had elapsed between Applicant’s last use of marijuana in April 2014 and the close of the record in late 2016. However, given the extent of Applicant’s drug use, his admission that he was addicted to marijuana, and his use of marijuana and cocaine while holding a clearance, the Judge’s conclusion that Applicant had not been abstinent long enough to show true rehabilitation is sustainable. Applicant cites to some Hearing Office cases that be believes support his effort to obtain a favorable decision. We give these cases 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. 15-04096 at 2 (App. Bd. Nov. 22, 2016). Contrary to Applicant’s argument, the Judge’s whole-person analysis complies with the requirements of Directive ¶ 6.3, in that the Judge considered the totality of the evidence in reaching her decision. See, e.g., ISCR Case No. 14- 05762 at 3 (App. Bd. Dec. 15, 2016). The Judge examined the relevant evidence 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: William S. Fields William S. Fields Administrative Judge Member, Appeal Board