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ISCR Case 17-02779.a1 — CASE

ISCR Case 17-02779.a1denied

Case Headnote

ISCR Case No. 17-02779.a1

Nov 7, 2018· Hon. Michael Y. Ra'anan· appeal

Summary

A 27-year-old defense contractor employee was denied a security clearance due to concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The denial stemmed from the applicant's history of marijuana use.

Despite the applicant's claim of ten months of abstinence from marijuana prior to the hearing, this was deemed insufficient to establish a consistent pattern of cessation. Consequently, the applicant failed to mitigate the disqualifying conditions related to drug involvement and personal conduct.

The security clearance was ultimately denied because the applicant's history of marijuana use was disqualifying under both Guidelines H and E, and a sufficient pattern of abstinence was not demonstrated. Arguments made on appeal did not establish that the initial decision was arbitrary or contrary to law.

Conditions Referenced

Disqualifying

HraisedDrug Involvement
EraisedPersonal 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 11, 2017
Answer filed—
Hearing heldSep 4, 2018
Decision dateNov 7, 2018

Cite For

Denial Based on Drug Involvement Under Guideline H
Failure to Establish a Pattern of Abstinence as a Disqualifying Factor
The Standard for Granting Clearance Related to National Security Interests

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 (Drug Involvement and Substance Misuse) and Guideline E (Personal Conduct). The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMarc E. Curry — 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 contended 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 did not commit any harmful error and that the decision was sustainable on the record, affirming the denial of the security clearance.

Standard of review applied

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

Appeal Board panel

Michael Ra’anan — Chair
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 E; Guideline H DIGEST: Applicant’s citation to the ADR is out of place. The Appeal Board and DOHA Judges decide cases in accordance with the Directive and Adjudicative Guidelines, not the ADR. Indeed, the ADR, itself, notes that it is not U.S. Government policy and may not be cited as authority for denials or revocations. Adverse decision affirmed. CASENO: 17-02779.a1 DATE: 11/07/2018 DATE: November 7, 2018 In Re: -------------------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 17-02779

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 October 11, 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 hearing. On September 4, 2018, after the hearing, 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 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 27-year-old employee of a defense contractor. She graduated from college in 2014 and began working for her employer in 2016. From 2013 to September 2017, she used marijuana with varying frequency. She attributed that conduct to peer pressure and a relationship with a manipulative boyfriend. She vowed on her security clearance application (SCA) to not use it again, but failed to comply with that pledge by using it after submitting her SCA and before her background interview. During the interview, she promised again to not use it in the future. She has not associated with people who are bad influences since October 2017. Applicant’s marijuana use continued for three years after she graduated from college and after she submitting her SCA in which she promised to stop using it. She has not established a pattern of abstinence. Her history of marijuana use is disqualifying under Guidelines H and E.

DISCUSSION

In the appeal brief, Applicant contends that the Judge erred in concluding that she failed to establish a pattern of abstinence. She argues that she has not used illegal substances for ten months before the hearing and, in support of her arguments, cites to provisions of the Adjudicative Desk Reference (ADR).1 We have never established a “bright line” rule as to the recency of misconduct, such as drug use. The extent to which security concerns have become mitigated through the passage of time is a question that must be resolved based on the evidence as a whole. See, e.g., ISCR Case No. 14-01847 at 3 (App. Bd. Apr. 9, 2015). Applicant’s 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. 15-01717 at 4 (App. Bd. Jul. 3, 2017). Applicant’s citation to the ADR is out of place. The Appeal Board and DOHA Judges decide cases in accordance with the Directive and 1 Applicant also argues that she has not used marijuana since the hearing. Such information is not contained in the record and constitutes new evidence that the Appeal Board is prohibited from considering. Directive ¶ E3.1.29. Adjudicative Guidelines, not the ADR. Indeed, the ADR, itself, notes that it is not U.S. Government policy and may not be cited as authority for denials or revocations. ADR at 2. See also ISCR Case No. 11-01888 at 5 (App. Bd. Jun. 1, 2012). Applicant has failed to establish that the Judge committed any harmful error. 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 F. Duffy James F. Duffy Administrative Judge Member, Appeal Board Signed: Charles C. Hale Charles C. Hale Administrative Judge Member, Appeal Board