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ISCR 17-00334.a1: Guideline H security clearance appeal, denied (2018) · CASE

ISCR Case 17-00334.a1denied

Case headnote

ISCR Case No. 17-00334.a1

Jul 31, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A federal contractor with prior security clearances was denied a security clearance under Guideline H (Drug Involvement) due to recent marijuana use. The appeal board upheld the denial, concluding that the applicant's drug use was incompatible with national security interests.

The denial was based on several disqualifying conditions, primarily H.1. The board found that the applicant's marijuana use was recent, and a significant portion of this use occurred after she had already been granted access to classified information.

Furthermore, the applicant did not adequately demonstrate the coping skills necessary to prevent future drug use. The appeal board found no harmful errors in the judge's initial findings, affirming the decision to deny the security clearance.

Conditions referenced

Disqualifying

H.1raisedDrug 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 issuedMar 21, 2017
Answer filed—
Hearing heldMar 27, 2018decision on the written record
Decision dateJul 31, 2018

Cite for

Recent Drug Use Under Guideline H
Inconsistent Behavior with National Security Interests
Affirmation of Denial Based on Substantial Evidence

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 concerns under Guideline H related to drug involvement. The applicant challenged the Judge's findings, but the Board affirmed the decision, finding no harmful error in the Judge's conclusions.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowNicole L. Noel 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 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 findings were based on substantial evidence and reasonable inferences, and that the applicant did not demonstrate any harmful error in the Judge's 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
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 some of the Judge’s findings of fact. However, these findings are generally consistent with the evidence in the record. They are based upon substantial evidence or constitute reasonable inferences therefrom. Adverse decision affirmed. CASENO: 17-00334.a1 DATE: 07/31/2018 DATE: July 31, 2018 In Re: ---------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 17-00334

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 March 21, 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 27, 2018, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Nicole L. Noel 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 and Analysis Applicant has worked for a Federal contractor since 2007. She has previously worked for other Federal contractors and was granted access to classified information in 1992, 2000, and 2006. Her most recent security clearance application (SCA) was signed in 2015. Applicant first used marijuana in her late 40sand resumed using it in her 50sand into her 60s. She does not believe that she has a substance abuse problem, having used marijuana only during times of stress. She does not believe that her use of marijuana impairs her ability protect classified information. Her six character letters recommend her for a clearance. She is a highly valued, productive, and effective employee. She has taken steps to deal with stress more effectively and has signed a statement of intent with automatic revocation of her clearance should she reoffend. The Judge concluded that Applicant’s drug use was recent and that her conduct cannot be considered infrequent. She used marijuana at least twice between 2008 and 2015, with 2014 being the only year in which she did not use the drug at all. She has not demonstrated that she has attained the coping skills that would prevent her from reverting to marijuana use for stress relief. The majority of Applicant’s drug use occurred after she had been granted classified information, which is a breach of her fiduciary duty to the U.S.

DISCUSSION

Applicant challenges some of the Judge’s findings of fact. However, these findings are generally consistent with the evidence in the record. They are based upon substantial evidence or constitute reasonable inferences therefrom. Applicant has cited to no harmful error in the Judge’s findings. See, e.g., ISCR Case No. 17-01181 at 4 (App. Bd. Apr. 30, 2018). The balance of Applicant’s brief is a challenge to the Judge’s weighing of the evidence, which is not enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Id. 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 Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board