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ISCR Case 16-02872.a1 — CASE

ISCR Case 16-02872.a1denied

Case Headnote

ISCR Case No. 16-02872.a1

Jun 22, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline H (Drug Involvement). The denial stemmed from his admitted marijuana use between 2007 and 2015, which notably included periods after he had already obtained a security clearance in 2013.

The appeal board affirmed the denial, concluding that the applicant's drug use negatively impacted his security clearance worthiness. This decision was made despite the applicant's assertions of infrequent use and his stated intent to abstain from future drug use.

Specifically, the denial was based on the applicant's admission of using marijuana while holding a security clearance. The judge determined that the applicant's promise to abstain was undermined by his continued drug use post-clearance, and that his drug use was not infrequent, thereby reflecting negatively on his overall security clearance worthiness.

Conditions Referenced

Disqualifying

HraisedDrug Involvement

Mitigating

H.26(a)rejectedInfrequency of UseThe judge concluded that the applicant's drug use was not infrequent.
H.26(b)rejectedAcknowledgment and Actions TakenThe applicant's promise to abstain was not sufficient to mitigate the concerns.

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 issuedOct 31, 2016
Answer filed—
Hearing heldMar 30, 2018
Decision dateJun 22, 2018

Cite For

Affirmation of Adverse Decision Due to Drug Involvement Under Guideline H
Harmless Error Doctrine in the Context of Security Clearance Decisions
Evaluation of Mitigating Conditions Related to Drug Use

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 the applicant's marijuana use while holding a clearance. The applicant argued that the Judge's decision was arbitrary and that there were errors in the analysis of mitigating factors. The Board affirmed the decision, finding that any errors were harmless and did not affect the outcome.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCaroline E. Heintzelman — denied the clearance

Decided ona hearing

Guidelines belowGuideline H

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contends the Judge erred in her analysis of mitigating conditions and the whole-person concept.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argues that the Judge's adverse decision was arbitrary, capricious, or contrary to law.
Erroneous finding of fact — raised by the applicantError found, but harmless
There is a variance between the Judge’s finding and conclusion regarding the frequency of marijuana use.

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 the Judge's decision was supported by substantial evidence and that any errors identified were harmless, as they did not affect the outcome of the case. The Judge's findings regarding the applicant's drug use and its implications for security clearance were deemed reasonable and consistent with national security interests.

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 Y. Ra’anan — Chair
Charles C. Hale
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: We note that there is a variance between the Judge’s finding (“less than ten times”) and conclusion (“at least ten times”) on this issue (marijuana use). This difference, however, constitutes a harmless error given Applicant’s drug use occurred while holding a security clearance. Adverse decision affirmed. CASENO: 16-02872.a1 DATE: 06/22/2018 DATE: June 22, 2018 In Re: -------------------------------

Applicant for Security Clearance

) ) ) ) ) ) ) ) ) ISCR Case No. 16-02872

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 October 31, 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).1 Applicant requested a hearing. On March 30, 2018, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Caroline E. Heintzelman 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. Background The SOR alleged that Applicant used marijuana with varying frequency from 2007 to at least July 2015 and used it after being granted a security clearance in 2013. In his Answer to the SOR, he admitted both SOR allegations. The Judge found that Applicant knew his illegal drug use was inconsistent with the policies of his company and DoD. The Judge also found that “Applicant testified that he used marijuana less than ten times in his life, and this use was always in social settings.” Decision at 3. He regrets his past illegal drug use and promises not to use it in the future. He submitted a signed letter of intent to abstain. He also submitted reference letters, his recent performance evaluation, and certificates praising his performance. The Judge concluded Applicant’s illegal drug use was not infrequent. “Nor can his use, at least ten times between 2007 and 2015 be considered isolated incidents” Decision at 6. His promise to abstain in the future is undercut by his use of illegal drugs after being granted a security clearance in 2013 and submitting a security clearance application in 2015. His use of illegal drugs reflects negatively on his current security clearance worthiness.

DISCUSSION

Applicant contends the Judge erred by overstating that his marijuana use occurred “‘at least’ ten times between 2007 and 2015.” Appeal Brief at 1. He argues that he testified his marijuana use occurred “less than ten times in his life.” Id. We note that there is a variance between the Judge’s finding (“less than ten times”) and conclusion (“at least ten times”) on this issue. This difference, however, constitutes a harmless error given Applicant’s drug use occurred while holding a security clearance. See, e.g., ISCR Case No. 11-15184 at 3 (App. Bd. Jul. 25, 2013) (An error is harmless if it did not likely affect the outcome of the case). 1 On June 8, 2017, the adjudicative guidelines were revised. Guideline H is now titled: Drug Involvement and Substance Abuse. Applicant also contends that the Judge erred in her analysis of mitigating conditions 26(a)2 and 26(b)3 and in her analysis of the whole-person concept. In doing so, he argues, for example, that his marijuana use was infrequent and happened nearly three years ago; that he self-reported his drug use; that he submitted a signed statement of intent; and that he submitted character evidence. In referring to his character evidence, he states, “While the documents were acknowledged as being received, there is no indication they were actually read and considered in making the analysis.” Appeal Brief at 1. He has failed to establish that the Judge committed any harmful error. His arguments are neither enough to rebut the presumption that the Judge considered all of the evidence in the record nor sufficient 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. 15-01717 at 4 (App. Bd. Jul. 3, 2017). 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, 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 Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Charles C. Hale Charles C. Hale 2 Directive, Encl. 2, App. A ¶ 26(a) states, “the behavior happened so long ago, was so 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[.]” 3 Directive, Encl. 2, App. A ¶ 26(b) states, “the individual acknowledges his or her drug involvement and substance misuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence, including, but not limited to: (1) disassociation from drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used; and (3) providing a signed statement of intent to abstain from all drug involvement and substance misuse, acknowledging that any future involvement or misuse is grounds for revocation of national security eligibility[.]” Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board