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ISCR 06-18096.a1: Guideline H security clearance appeal, granted (2008) · CASE

ISCR Case 06-18096.a1granted

Case headnote

ISCR Case No. 06-18096.a1

Apr 4, 2008· Hon. Jean E. Smallin· appeal

Summary

A 23-year-old master's degree candidate was granted a U.S. DOHA security clearance despite concerns under Guideline H (Drug Involvement). The applicant admitted to using marijuana five times between July 2005 and December 2006.

The judge applied mitigating conditions H.26(a) and H.26(b), noting the infrequency of the applicant's drug use and his demonstrated intent to abstain from future drug use. The applicant's honesty during the security clearance process regarding his past drug use also contributed to the favorable decision.

Ultimately, the judge determined that the applicant's current reliability and trustworthiness outweighed the past drug involvement, leading to the clearance being granted.

Conditions referenced

Disqualifying

HraisedDrug Involvement

Mitigating

H.26(a)appliedBehavior Unlikely to Recur
H.26(b)appliedDemonstrated Intent Not to Abuse Drugs

Key rule quoted

“any drug abuse is sufficient to raise a security concern”
Directive ¶ E2.25(a)

Procedural posture

SOR issuedAug 31, 2007
Answer filed—
Hearing heldNov 29, 2007
Decision dateApr 4, 2008

Cite for

Application of Mitigating Conditions Under Guideline H
Consideration of Infrequency of Drug Use in Security Clearance Decisions
Demonstrated Intent to Abstain From Drug Use as a Mitigating Factor

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 security clearance decision where the applicant had used marijuana five times. The Department Counsel appealed the favorable decision granted by the Administrative Judge, arguing that the Judge's conclusions were erroneous. The Board affirmed the decision, finding the Judge's error harmless as mitigating factors were appropriately applied.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowJohn Grattan Metz, Jr. granted the clearance

Decided ona hearing

Guidelines belowGuideline H

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the Government (Department Counsel)Error sustained
The Judge's application of Guideline H disqualifying and mitigating conditions was arbitrary, capricious, or contrary to law.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that while the Judge's conclusion regarding the government's case for disqualification was erroneous, it was harmless as the Judge applied mitigating factors that justified the favorable 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

Jean E. Smallin
William S. Fields
James E. Moody

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 used marijuana five times. The Judge’s erroneous conclusion that the government failed to establish a case for disqualification is harmless in this case. Favorable decision affirmed. CASENO: 06-18096.a1 DATE: 04/04/2008 DATE: April 4, 2008 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-18096

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Ray T. Blank, Jr., Esq., Department Counsel FOR APPLICANT Pro Se “(a) the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgement; (b) a demonstrated intent not to abuse any drugs in the future, such as: (1) disassociation from drug-using associates; (2) changing or avoiding the environment where drugs were used; (3) an appropriate period of abstinence; (4) a signed statement of intent with automatic revocation of clearance for any violation;” Directive ¶¶ E2.26(a) and 26(b). The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 31, 2007, DOHA issued a statement of reasons advising Applicant of the basis for that decision—security concerns raised under Guideline H (Drug Involvement) of Department of Defense Directive 5220.6 (Jan. 2, 1992), as amended (Directive). Applicant requested a hearing. On November 29, 2007, after the hearing, Administrative Judge John Grattan Metz, Jr., granted Applicant’s request for a security clearance. Department Counsel timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raises the following issue on appeal: whether the Judge’s application of Guideline H disqualifying and mitigating conditions was arbitrary, capricious, or contrary to law. Applicant is 23 years old. He used marijuana five times between July 2005 and December 2006–four times during college and once after he began working. After his last usage, Applicant realized that his decision to use drugs was a bad one, and he resolved never to use illegal drugs again. Applicant was honest about his drug usage on his security clearance application and in his interview with an investigator. Applicant is pursuing a master’s degree and is highly thought of by his employer. The Judge concluded that “[t]he government failed to establish a case for disqualification under Guideline H.” Department Counsel argues that conclusion is in error. Department Counsel’s argument has merit. Applicant admitted his drug abuse, and the Directive states that “any drug abuse” is sufficient to raise a security concern. See Directive ¶ E2.25(a). Thus, the government’s security concern against him was established. See, e.g., ISCR Case No. 06-22515 at 2 (App. Bd. Dec. 7, 2007). The burden then shifted to Applicant to provide evidence of mitigation. Department Counsel also contends that the Judge’s application of mitigating conditions is in error. Department Counsel’s contention in this regard lacks merit. The Judge reasonably explained why he applied Guideline H mitigating conditions ¶¶ 26(a) and 26(b). The Judge based his conclusions on record evidence such as the infrequency and the circumstances of the drug use. The Judge also considered changes in Applicant’s life, including his career and his pursuit of a master’s degree. While the Judge’s conclusion that the government did not establish a case against Applicant was error, that error is harmless, because the Judge went on to apply mitigating factors in order to The Board also need not agree with the Judge’s characterizations, e.g., “denying a clearance for a 23-year-old who used marijuana five times defies common sense.” mitigate the security concerns raised by Applicant’s drug use. The Board need not agree with the Judge’s decision to find it sustainable.

ORDER

The Judge’s favorable security clearance decision is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board