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ISCR Case 17-02196.a1 — CASE

ISCR Case 17-02196.a1denied

Case Headnote

ISCR Case No. 17-02196.a1

Apr 27, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A 61-year-old defense contractor employee was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The applicant tested positive for marijuana and cocaine in 2016, which raised disqualifying conditions related to her drug involvement.

Further issues arose from her failure to self-report this drug use before the positive test and her inability to document participation in a drug counseling program. The judge determined that her conduct created doubts about her reliability, trustworthiness, and good judgment.

The appeal board affirmed the denial, noting the applicant did not provide sufficient mitigating evidence to counter the drug involvement and personal conduct concerns. Specifically, there was a lack of evidence to support her claims of rehabilitation, leading to the decision to deny the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 25raisedDrug Involvement
AG ¶ 16raisedPersonal 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 issuedJul 13, 2017
Answer filed—
Hearing heldJan 30, 2018
Decision dateApr 27, 2018

Cite For

Affirmation of Denial Based on Drug Involvement Under Guideline H
Lack of Mitigating Evidence in Personal Conduct Cases Under Guideline E
Importance of National Security in Clearance Determinations

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 seeking a security clearance after being denied due to drug involvement and personal conduct issues. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error and that the applicant did not provide sufficient evidence to mitigate the concerns raised.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRobert Robinson Gales — denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline HGuideline 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 decision was supported by substantial evidence and that the applicant failed to demonstrate any harmful error that would change the outcome of the case. The applicant was given sufficient notice of her burden to provide evidence and did not do so adequately.

Standard of review applied

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

Appeal Board panel

Michael Y. 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 DIGEST: Applicant was provided sufficient notice that the burden was on her to submit any information not contained in the FORM that she wanted the Judge to consider. Adverse decision affirmed. CASENO: 17-02196.a1 DATE: 04/27/2018 DATE: April 27, 2018 In Re: -----------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 17-02196

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 13, 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) 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 January 30, 2018, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Robert Robinson Gales 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 is a 61-year-old employee of a defense contractor. In 2006, she was granted a security clearance. In early 2016, she tested positive for marijuana and cocaine during a random urinalysis test. She offered no explanation for her decision to use those substances. Due to her positive drug test, she was suspended from work for one week, required to attend drug counseling through the company’s Employee Assistance Program (EAP), and required to undergo random urinalysis tests every five or six weeks until early 2018. She did not furnish any documentation regarding the EAP provider, its treatment program, or the professional qualifications of the individuals conducting that program. No prognosis by a qualified medical professional was provided. In referring to the drug-involvement incident in her security clearance application, Applicant stated that she realized she made a huge mistake and promised it would not happen again. No evidence was presented that she self-reported the incident to her employer before the drug test. She lives in fear that her colleagues or family will become aware of the incident. Her manager considers her reliable, dependable, and to have the highest ethical standards. She has received a number of work awards. Highlighting the paucity of mitigating evidence, the Judge concluded that Applicant’s alleged conduct continues to cast doubt on her current reliability, trustworthiness, and good judgment. He found against her on three of the four Guideline H allegations and the cross-alleged Guideline E allegation.1

DISCUSSION

1 The Judge found in favor of Applicant on an SOR allegation that asserted she attended drug counseling on certain dates. In her appeal brief, Applicant states she was under the impression that the name and qualifications of her drug counselor were provided during her security clearance investigation. She also thought that her drug counselor provided a description of her limited drug usage and her prognosis. In this regard, Applicant was provided a copy of Department Counsel’s File of Relevant Material (FORM), and she was given 30 days from its receipt to make objections and submit additional matters. The cover letter forwarding the FORM specifically advised Applicant that, unless she submitted objections or additional matters, her case would be assigned to a Judge “for a determination solely upon the enclosed FORM.”2 [Emphasis added.] Applicant was provided sufficient notice that the burden was on her to submit any information not contained in the FORM that she wanted the Judge to consider. See also, Directive ¶ E3.1.15. Many of the matters that Applicant addresses in her appeal brief are not contained in the record and constitute new evidence that the Appeal Board cannot consider. Directive ¶ E3.1.29. We also note that, while 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). Applicant has not established any basis for challenging any of the Judge’s material findings or conclusions. Applicant also argues that she has mitigated the alleged security concerns. In her arguments, for example, she cites to her manager’s letter of reference and claims she has a history of being a model citizen. These arguments amount to a disagreement with the Judge’s weighing of the evidence. A party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-06440 at 4 (App. Bd. Jan. 8, 2016).

Applicant has not identified any harmful error likely to change the outcome of the case. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision.“ 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.” The decision is sustainable on this record. 2 DOHA letter dated August 25, 2017.

ORDER

The Decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. 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