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ISCR Case 16-02483.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date6/11/2018
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 16-02483.h1) →
Participants
Judge: Michael Y. Ra'anan, James E. Moody, James F. Duffy
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline HDrug Involvement & Substance Misuse · For Applicant
- Guideline JCriminal Conduct · For Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
Finding similar decisions…

ISCR Case 16-02483.a1denied

Case Headnote

ISCR Case No. 16-02483.a1

Jun 11, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A 27-year-old male applicant was denied a security clearance under Guideline E (Personal Conduct), despite favorable findings under Guideline H (Drug Involvement) and Guideline J (Criminal Conduct). The denial stemmed from the applicant's admitted use of marijuana while actively holding a security clearance, a behavior he knew was inconsistent with clearance requirements.

The judge determined that the applicant's drug use constituted a serious breach of trust. The applicant's explanations for his conduct were deemed insufficient and not unique enough to mitigate the security concerns.

Although the applicant had abstained from drug use for four years, this period of abstinence, along with his other arguments, was not considered sufficient to overcome the gravity of his prior personal conduct. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

E2.A5.1.raisedPersonal Conduct

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 9, 2016
Answer filed—
Hearing heldMar 19, 2018
Decision dateJun 11, 2018

Cite For

Weighing Evidence Differently Under Different Guidelines
Seriousness of Drug Use While Holding a Clearance
Insufficient Mitigation Arguments for Personal Conduct Issues

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 concerns under Guidelines H, J, and E. The Applicant argued that the Judge's decision was arbitrary and capricious, particularly regarding the adverse finding under Guideline E. The Board affirmed the Judge's decision, finding no harmful error in the analysis.

Appealed bythe applicant

Applicant representationAttorney

Judge belowArthur E. Marshall, Jr. — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline HGuideline JGuideline E

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 analysis under Guideline E was reasonable and that the Applicant did not demonstrate that the Judge's decision was arbitrary, capricious, or contrary to law. The Judge's findings were supported by substantial evidence and articulated a satisfactory explanation for the decision.

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 E; Guideline H; Guideline J DIGEST: A Judge may weigh the same evidence differently under different guidelines. In the case before us, the Judge’s analysis under Guideline E devoted particular attention to Applicant’s drug use while holding a clearance. This was reasonable, in view of the inclusion under Guideline E of conduct that evidences questionable judgment. Applicant has not shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Neither has he rebutted the presumption that the Judge considered all of the evidence in the record. Adverse decision affirmed. CASENO: 16-02483.a1 DATE: 06/11/2018 DATE: June 11, 2018 In Re: ---------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-02483

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Victoria Williamson, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On September 9, 2016, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline H (Drug Involvement), Guideline J (Criminal Conduct), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On March 19, 2018, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Arthur E. Marshall, Jr. 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. The Judge’s favorable findings under Guidelines H and J are not at issue in this appeal. Consistent with the following, we affirm. The Judge’s Findings of Fact and Analysis Applicant, who is 27 years old, first received a security clearance in 2013. In 2014, he and his fiancée broke off their engagement. Applicant began associating with friends he had met at a local bar. In May 2014, he noticed one of them smoking marijuana, and he joined in despite knowing that such conduct was not consistent with holding a clearance. He used the drug at least three times more. Applicant no longer associates with his friends who use marijuana, and he does not intend to use it in the future. Applicant enjoys a good reputation for his character. Applicant’s drug use was alleged under all three Guidelines. Though resolving two in Applicant’s favor, the Judge concluded that he had not mitigated the concerns under Guideline E. He cited to evidence that Applicant used marijuana while holding a clearance and while knowing that such use was not consistent with the requirements for holding a clearance. He stated that Applicant’s excuses–loneliness after a breakup, intoxication, etc–were not unique nor sufficient to justify a clearance. The Judge acknowledged that Applicant has been abstinent for four years. However, he found Applicant’s drug use while holding a clearance to be aggravating and “a grievous breach of trust.” Decision at 8. He stated that more time is required for Applicant to show that his security-significant conduct is behind him.

DISCUSSION

Applicant challenges the Judge’s mitigation analysis. He notes in particular what he views to be an inconsistency in the decision, the different result under Guideline E from the other two guidelines. He argues that the circumstances that justified favorable findings under Guidelines H and J should apply with equal force to Guideline E. He also cites to his breakup with his fiancée, his four years without re-offense, and other favorable evidence. A Judge may weigh the same evidence differently under different guidelines. See, e.g., ISCR Case No. 14-00715 at 3 (App. Bd. Dec. 10, 2014). In the case before us, the Judge’s analysis under Guideline E devoted particular attention to Applicant’s drug use while holding a clearance. This was reasonable, in view of the inclusion under Guideline E of conduct that evidences questionable judgment. See Directive, Encl. 2, App. A ¶ 15. See also ISCR Case No. 13-01281 at 4 (App. Bd. Aug. 4, 2014), in which the Judge evaluated drug use differently under Guidelines H and E. In the case before us, Applicant has not shown that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Neither has he rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 16-01077 at 2-3 (App. Bd. Apr. 25, 2018). The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision, regarding both the mitigating conditions and the whole-person factors. 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, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility 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