CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 16-03429.a1 — CASE

ISCR Case 16-03429.a1denied

Case Headnote

ISCR Case No. 16-03429.a1

Mar 15, 2018· Hon. Charles C. Hale· appeal

Summary

A 48-year-old defense contractor was denied a security clearance based on Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The denial stemmed from a 31-year history of marijuana use, which included use while previously holding a security clearance. A significant factor was the applicant's deliberate failure to disclose this extensive drug use on his security clearance application.

Although the applicant claimed to have ceased marijuana use in 2014, the judge found insufficient evidence to demonstrate a change in behavior or a firm intent to abstain from future use. Furthermore, no evidence was presented to show that the applicant had disassociated from individuals or environments associated with drug use.

Despite the application of mitigating condition 26(b), these disqualifying conditions ultimately led to the denial of the security clearance, which was subsequently affirmed on appeal.

Conditions Referenced

Disqualifying

HraisedDrug Involvement and Substance Abuse
EraisedPersonal Conduct

Mitigating

26(b)rejectedMitigating Condition 26(b)The applicant did not provide evidence of actions taken to overcome drug involvement or establish a pattern of abstinence.

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 issuedDec 8, 2016
Answer filed—
Hearing held—
Decision dateMar 15, 2018

Cite For

Long History of Drug Involvement Under Guideline H
Failure to Disclose Drug Use in Security Clearance Application Under Guideline E
Insufficient Evidence of Rehabilitation or Intent to Abstain From 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 long history of marijuana use. The Applicant argued that the Judge's findings were erroneous and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowDarlene D. Lokey Anderson — denied the clearance

Decided onthe written record

Guidelines belowGuideline EGuideline H

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contends that the Judge's adverse decision was arbitrary, capricious, or contrary to law.
Erroneous finding of fact — raised by the applicantError found, but harmless
Applicant claims the Judge erred in finding he has worked for his current employer since 2010 instead of 1993.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argues the Judge's conclusion regarding his association with drug-using friends and environments was unsupported.
Whole-person analysis — raised by the applicantRejected
Applicant contends the Judge did not properly apply the whole-person factors.

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 findings were supported by substantial evidence and that the decision was not arbitrary or capricious. The Judge appropriately considered the nature and scope of the Applicant's marijuana use and the lack of mitigating evidence presented by the Applicant.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealBurden of persuasion

Appeal Board panel

William S. Fields
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 E; Guideline H DIGEST: Applicant contends that the Judge erred in finding “he used marijuana from August 1983 until at least June 2014, throughout a period of 31 years.” In this case, the sentences following the challenged finding show that the Judge appropriately considered the nature and scope of Applicant’s marijuana use as it is reflected in the record. We resolve this issue adversely to Applicant. Adverse decision affirmed. CASENO: 16-03429.a1 DATE: 03/15/2018 DATE: March 15, 2018 In Re: ------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-03429

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 December 8, 2016, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline H (Drug Involvement and Substance Abuse) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On November 30, 2017, 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 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, who is 48 years old, has been working for his current employer, a defense contractor, since 2010. He was granted a security clearance in 2010. “Applicant admits that he used marijuana from August 1983 until at least June 2014, throughout a period of 31 years. He states that after receiving his security clearance in 2010, he has not purchased or possessed any illegal drug including marijuana. He did use marijuana in 2014 in a private setting with close friends while on vacation from work. He further states that he does not use illegal drugs regularly, and never in a work environment, during his weekly work routine, or amongst strangers. His last use of marijuana occurred in 2014.” Decision at 2. In 2015, Applicant completed a security clearance application (SCA) in which he responded “No” to the question that asked whether he ever illegally used a controlled substance while possessing a security clearance. He stated that he forgot about his marijuana use in 2014 and did not intend to be deceptive. The Judge’s Analysis Applicant used marijuana from 1983 to at least 2014 and used it while holding a security clearance. “There is no evidence in the record that Applicant has changed his association with friends that use drugs, his environments where the drugs are used, nor has he provided a signed statement of intent to abstain from illegal drug use in the future.” Decision at 5. Applicant states that he misread the SCA question about whether he ever used any illegal drug while possessing a security clearance. He obviously knew his marijuana use in 2014 was against the law and DoD policy when he deliberately falsified his SCA.

DISCUSSION

Applicant contends that the Judge erred in finding “he used marijuana from August 1983 until at least June 2014, throughout a period of 31 years.” Id. at 2. He argues the Judge’s finding misrepresents his behavior and distorts the facts. He points out that he occasionally used marijuana before being granted a security clearance and used it only once since then. When reviewing a Judge’s decision, the Board does not review individual sentences in isolation, but rather considers the Judge’s decision in its entirety to determine what findings the Judge made and what conclusions the Judge reached. See, e.g., ISCR Case No. 01-22311 at 4 (App. Bd. Apr. 4, 2003). In this case, the sentences following the challenged finding show that the Judge appropriately considered the nature and scope of Applicant’s marijuana use as it is reflected in the record. We resolve this issue adversely to Applicant. Applicant contends the Judge erred in making her finding about the amount of time that he has worked for his current employer. He claims that he has worked for his current employer since 1993, not 2010. Although the Judge erred in this finding, such an error was harmless, i.e., an error that is not likely to affect the outcome of the case. See, e.g., ISCR Case No. 11-15184 at 3 (App. Bd. Jul. 25, 2013). Applicant takes issue with the Judge’s conclusion that the record contains no evidence that he has disassociated from his drug-using friends, that he avoids the environment were drugs are used, or that he provided a signed statement of intent to abstain from illegal drug involvement. He states that he does not recall being asked to submit evidence on those matters. The Judge’s conclusion relates to her analysis under mitigating condition 26(b)1 and is supported by record evidence. The burden was on Applicant to present mitigating evidence (see, Directive ¶ E3.1.15), including any existing evidence that supported the favorable application of mitigating condition 26(b).2 Although pro se applicants cannot be expected to act like lawyers, they are expected to take timely, reasonable steps to protect their rights under the Directive. See, e.g., ISCR Case No. 12- 02371 at 3 (App. Bd. Jun. 30, 2014). 1 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[.] 2 During his personal subject interview, Applicant declined to provide the names of the individuals with whom he smoked marijuana in 2014. See, Item 4 of Department Counsel’s File of Relevant Material. Applicant contends that his omission of his marijuana use in 2014 from his SCA was not deliberate. He claims he overlooked that marijuana use, which occurred less than a year before he completed his SCA. He also challenges the Judge’s conclusion that he has a long history of marijuana use, pointing out that he used marijuana once in the past seven years. Additionally, he argues that the Judge did not properly apply the whole-person factors. These arguments, however, amount to a disagreement with the Judge’s weighing of the evidence, which is not enough to show the Judge’s 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; William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board