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ISCR Case 17-02236.a1 — CASE

ISCR Case 17-02236.a1denied

Case Headnote

ISCR Case No. 17-02236.a1

Jul 2, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A 26-year-old defense contractor was denied a security clearance under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The denial stemmed from the applicant's use of marijuana while already holding a security clearance, which raised concerns regarding reliability and judgment.

Specifically, Disqualifying Conditions H1 (drug use) and E2 (deliberate misrepresentation or falsification) were cited. The judge found the applicant's conduct inconsistent with the standards required for national security eligibility.

Although the applicant claimed a history of abstinence and an intent to refrain from future use, these arguments for mitigation were not persuasive. The denial was affirmed on appeal, emphasizing that security clearance eligibility must align with national security interests.

Conditions Referenced

Disqualifying

H1raisedDrug Involvement
E2raisedPersonal 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 issuedOct 19, 2017
Answer filed—
Hearing heldMar 26, 2018
Decision dateJul 2, 2018

Cite For

Denial of Security Clearance Due to Drug Involvement Under Guideline H
Impact of Personal Conduct on Security Clearance Eligibility Under Guideline E
Insufficient Mitigation of Security Concerns Related to Illegal 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 drug involvement and personal conduct. The Applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful error in the Judge's analysis and conclusions.

Appealed bythe applicant

Applicant representationAttorney

Judge belowEric H. Borgstrom — denied the clearance

Decided ona hearing

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 articulated a satisfactory explanation for the denial of the security clearance. The arguments presented by the Applicant did not demonstrate that the Judge's decision was 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

Michael 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 E; Guideline H DIGEST: Applicant was granted a security clearance in 2015. In 2016, he experienced symptoms of depression, which he believed were not being adequately treated by his medication and other medical treatments. He decided to use marijuana with his friend. Soon thereafter, he purchased marijuana, took it with him on a business trip, and used it two mornings before business meetings. He also purchased drug paraphernalia on that trip. Adverse decision affirmed. CASENO: 17-02236.a1 DATE: 07/02/2018 DATE: July 2, 2018 In Re: -------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 17-02236

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Anthony L Ciuca, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On October 19, 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 Abuse) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On March 26, 2018, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Eric H. Borgstrom 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 is a 26-year-old employee of a defense contractor. He was granted a security clearance in 2015. In 2016, he experienced symptoms of depression, which he believed were not being adequately treated by his medication and other medical treatments. A close friend recommended that he use marijuana to self-medicate. After reviewing scientific studies, he decided to use marijuana with his friend. Soon thereafter, he purchased marijuana, took it with him on a business trip, and used it two mornings before business meetings. He also purchased drug paraphernalia on that trip. Hotel personnel confronted him about his marijuana use. Concerned that hotel personnel would notify his employer about such conduct, he preemptively informed his supervisor. He was immediately sent home, indefinitely suspended, subjected to random drug tests, and required to attend counseling. He failed three drug tests in a three-month period in mid-2016. He subsequently successfully passed several random drug tests over the next 12 months. He estimated that he used marijuana five times over a two-month period in 2016. When he used marijuana, Applicant knew his conduct was illegal and would negatively impact his security clearance eligibility. He is still in contact with his friend with whom he used marijuana. His supervisor has a high opinion of his work performance. The Judge’s Analysis The circumstances and recency of Applicant’s drug use while granted a security clearance cast doubt on his reliability, good judgment, and ability to safeguard classified information. His 18- month abstinence and statement of intent to abstain from future marijuana use do not mitigate the security concerns arising from his repeated marijuana use while holding a security clearance.

DISCUSSION

In the appeal brief, Applicant contends that the Judge erred in failing to apply the factors in Enclosure 2, Appendix A ¶ 2(f) of the Directive, i.e., factors that an adjudicator should consider when security concerns become known about an individual who is eligible to access classified information. We do not find this argument persuasive. First, we note that the Judge made findings about most of the facts that Applicant has identified as supporting application of those factors. Second, as we have previously stated, a Judge is not required to discuss all of the analytical factors set forth in the Directive. See, e.g., ISCR Case No. 14-06135 at 2, n.1 (App. Bd. June 15, 2016). Applicant also contends that the Judge erred in concluding that Applicant failed to mitigate the security concerns. In doing so, he notes the Judge failed to mention Applicant’s volunteer work and argues that the Judge essentially dismissed his period of abstinence and statement of intent. These arguments essentially amount to a disagreement with the Judge’s weighing of the evidence and are neither sufficient to rebut the presumption that the Judge considered all of the evidence in the record nor enough to establish that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15-06494 at 3 (App. Bd. Oct. 5, 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 Ra’anan Michael Ra’anan Administrative Judge Chairperson, 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