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ISCR Case 16-03436.a1 — CASE

ISCR Case 16-03436.a1denied

Case Headnote

ISCR Case No. 16-03436.a1

Jul 31, 2018· Hon. Charles C. Hale· appeal

Summary

A 55-year-old federal contractor was denied a security clearance under Guideline H (Drug Involvement) due to a history of daily marijuana use and a failed pre-employment drug test. The applicant openly stated he found marijuana use enjoyable and believed it offered spiritual benefits.

During the clearance process, the applicant failed a pre-employment drug test and expressed indifference about passing it, indicating he did not want the job. This nonchalant attitude towards drug use and the associated security risks was a significant factor in the denial.

The appeal board affirmed the denial, citing the applicant's ongoing drug involvement as a security risk. The decision highlighted the applicant's long-standing pattern of marijuana use and his lack of concern regarding compliance with drug testing requirements.

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 issuedJul 27, 2017
Answer filed—Applicant requested a decision on the written record.
Hearing heldMar 30, 2018
Decision dateJul 31, 2018

Cite For

Security Risks Associated with Ongoing Drug Use Under Guideline H
Indifference to Drug Testing Results as a Factor in Clearance Denial
Affirmation of Adverse Decisions Based on Applicant's Drug Involvement History

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 challenged the SOR's wording and the Judge's decision as arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error and that the decision was supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMarc E. Curry — denied the clearance

Decided onthe written record

Guidelines belowGuideline 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.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the SOR was sufficient to place the Applicant on notice of the concerns against him. The Board concluded that the Judge's decision was not arbitrary, capricious, or contrary to law.

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

James E. Moody
James F. Duffy
Charles C. Hale

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 challenges the manner in which the SOR was written, contending that it misstated the facts about his pre-employment drug test failure. However, the SOR was sufficient to have placed Applicant on notice of the concerns against him. Adverse decision affirmed. CASENO: 16-03436.a1 DATE: 07/31/2018 DATE: July 31, 2018 In Re: -------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-03436

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 July 27, 2017, 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 Misuse) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On March 30, 2018, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Marc E. Curry denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises 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 and Analysis Applicant is 55 years old and works for a Federal contractor. He has been smoking marijuana with varying frequency, including daily, for 40 years. On one occasion, his use caused him to fail a pre-employment drug test. He stated that he did not care about passing the test because he did not want the job. He currently smokes marijuana every day, finding it enjoyable and believing that it confers spiritual benefits. Applicant’s use of marijuana, his “nonchalant attitude about failing a pre-employment drug screening,” and his expressed intent to continue using it renders him a security risk.

DISCUSSION

Applicant’s brief refers to matters from outside the record, that we cannot consider. Directive ¶ E3.1.29. He challenges the manner in which the SOR was written, contending that it misstated the facts about his pre-employment drug failure. However, the SOR was sufficient to have placed Applicant on notice of the concerns against him. See, e.g., ISCR Case No. 15-06623 at 3 (App. Bd. May 26, 2017). He also challenges the Judge’s weighing of the evidence. His arguments are not enough 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. 17-01181 at 4 (App. Bd. Apr. 30, 2018). To the extent that Applicant’s brief is a challenge to the Judge’s findings, we conclude that the Judge’s findings capture the essential facts contained in the record that was before him. See Directive ¶ E3.1.32.1 (setting the standard that we employ in evaluating a Judge’s findings). If Applicant believed that the record required additional facts, it was his job to submit them. Directive ¶ E3.1.15. Applicant has cited to no harmful error in the Decision. The record supports a conclusion that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The Judge’s adverse 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: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board Signed: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board