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ISCR Case 07-00852.a1 — CASE

ISCR Case 07-00852.a1unknown

Case Headnote

ISCR Case No. 07-00852.a1

May 27, 2008· Hon. Jean E. Smallin· appeal

Summary

This case involves an applicant whose security clearance was denied under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The applicant used marijuana after completing a pre-employment drug test and subsequent to submitting their security clearance application. This conduct raised disqualifying conditions related to drug involvement and personal conduct, specifically concerning the applicant's judgment and compliance with regulations.

The Appeal Board determined that the Administrative Judge made an error in evaluating the applicant's intent and judgment regarding drug use. The Board noted that the applicant's post-application marijuana use undermined any claims of an intent to abstain from drug use and highlighted a failure to comply with employer policies and legal requirements.

Consequently, the decision to grant the security clearance was reversed. The case was remanded for further consideration, with the Appeal Board emphasizing the critical importance of an applicant's adherence to laws and employer policies, particularly when assessing future intent and reliability for a security clearance.

Conditions Referenced

Disqualifying

AG ¶ 25raisedGuideline E: Personal Conduct
AG ¶ 24raisedGuideline H: Drug Involvement

Mitigating

AG ¶ 26(b)rejectedDrug Involvement Mitigating Condition 26(b)The Judge's conclusion that the applicant demonstrated intent not to use drugs was not supported by a serious discussion of the applicant's future intent.

Key Rule Quoted

“Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance.”
— Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991).

Procedural Posture

SOR issuedAug 17, 2007
Answer filed—
Hearing heldFeb 7, 2008
Decision dateMay 27, 2008Appeal Board remanded the case.

Cite For

Importance of Compliance with Employer Policies Under Guideline E
Consideration of Applicant's Intent Regarding Drug Use Under Guideline H
Presumption Against Granting Security Clearance When Concerns Arise.

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

Remanded

The appeal involved a security clearance decision where the Administrative Judge granted the Applicant a clearance despite evidence of marijuana use after a pre-employment drug test. The Department Counsel appealed, arguing that the Judge erred in applying mitigating conditions and in his overall analysis. The Board found merit in the appeal and remanded the case for further consideration.

Appealed bythe Government (Department Counsel)

Applicant representationAttorney

Judge belowMartin H. Mogul — granted the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the Government (Department Counsel)Error sustained
The Judge erred in applying Drug Involvement Mitigating Condition (DIMC) 26(b) without considering significant contrary evidence.
Decision arbitrary, capricious, or contrary to law — raised by the Government (Department Counsel)Error sustained
The Judge erred in concluding that Applicant’s case did not raise security concerns under Guideline E.
Decision arbitrary, capricious, or contrary to law — raised by the Government (Department Counsel)Error sustained
The Judge erred in his whole-person analysis.

Why the Board ruled this way

The Board found that the Judge's conclusions were not supported by a rational connection to the facts, particularly regarding the Applicant's drug use after submitting his SCA and the implications for his judgment and reliability.

Ignored material evidenceNo rational connection between facts and conclusion

On remand, the judge must

The Judge must examine the extent to which Applicant has met his burden of persuasion, both as to mitigation as well as to the whole-person, under both Guidelines E and H.

Standard of review applied

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

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; Guideline E DIGEST: Use of marijuana following a pre-employment drug test and after submitting a SCA significantly undercuts an applicant’s claim to have demonstrated an intent not to use drugs. One would expect that at that point a person would understand the importance of abstention. Applicant’s use of marijuana after such a test raises a substantial question as to whether he has demonstrated a serious intent to obey the law or whether he has refrained from drug use simply to qualify for employment. Applicant’s use of marijuana despite his employer’s policy, and his use after submitting his SCA, raise serious questions about his judgment and, therefore, under Guideline E. Favorable decision remanded. CASENO: 07-00852.a1 DATE: 05/27/2008 DATE: May 27, 2008 In Re: ----------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-00852

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Alison O’Connell, Esq., Department Counsel FOR APPLICANT Directive ¶ E2.26(b). “[A] demonstrated intent not to abuse any drugs in the future, such as: (1) disassociation form drug-using associates and contacts; (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[.]” Holly Walker, Esq. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On August 17, 2007, DOHA issued a statement of reasons advising Applicant of the basis for that decision–security concerns raised under Guideline H (Drug Involvement) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On February 7, 2008, after the hearing, Administrative Judge Martin H. Mogul granted Applicant’s request for a security clearance. Department Counsel filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issues on appeal: whether the Judge erred in applying Drug Involvement Mitigating Condition (DIMC) 26(b); whether the Judge erred in concluding that Applicant’s case did not raise security concerns under Guideline E; and whether the Judge erred in his whole-person analysis. Finding error, we remand the case to the Judge. Whether the Record Supports the Judge’s Factual Findings A. Facts The Judge made the following pertinent findings of fact: Applicant started using marijuana in college in 1995. His use was sporadic, though during 1998 it increased to one or two times a week. After graduating in 2000, his use decreased to one or two times a year. His last usage was in July 2006, and prior to that his next to last in October 2005. The use in 2006 took place after Applicant had submitted his security clearance application (SCA). Applicant has purchased some of the marijuana he has used. Additionally, he used psychogenic mushrooms once, during a trip to the Netherlands in 1999, and used Ecstasy once in 2002. Applicant has promised his girlfriend that he will not use drugs in the future. He also knows that drugs will hurt his career. He has decided not to use drugs even if he did not need a security clearance. B. Discussion The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they are supported by substantial evidence–“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the record.” Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620-21 (1966). In evaluating the Judge’s findings, we are required to give deference to the Judge’s credibility determinations. Directive ¶ E3.1.32.1. Department Counsel has not challenged the Judge’s findings. Therefore, they are not at issue in this appeal. In arguing the issues on appeal, Department Counsel contends that the Judge’s decision does not take into account significant contrary record evidence. The Board will address this contention below. Whether the Record Supports the Judge’s Ultimate Conclusions A Judge is required to “examine the relevant data and articulate a satisfactory explanation for” the decision, “including a ‘rational connection between the facts found and the choices made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). “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). The Appeal Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary, capricious, or contrary to law. Directive ¶¶ E3.1.32.3 and E3.1.33.3. Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the government presents th evidence raising security concerns, the burden shifts to the applicant to establish any appropriate mitigating conditions. See Directive ¶ E3.1.15. “The application of disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole.” See, e.g., ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20, 2006). In deciding whether the Judge's rulings or conclusions are arbitrary or capricious, the Board will review the Judge's decision to determine whether: it does not examine relevant evidence; it fails to articulate a satisfactory explanation for its conclusions, including a rational connection between the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere difference of opinion. In deciding whether the Judge's rulings or conclusions are contrary to law, the Board will consider whether they are contrary to provisions of Executive Order 10865, the Directive, or other applicable federal law. See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006). The Judge favorably applied DIMC 26(b), concluding that Applicant had demonstrated an intent not to use drugs in the future. Department Counsel persuasively argues that this conclusion was reached without appropriate consideration of significant contrary record evidence, specifically that Applicant used marijuana after submitting to a pre-employment drug test and that he used marijuana after submitting the SCA. The Board has previously held that use of marijuana following a pre-employment drug test and after submitting a SCA significantly undercuts an applicant’s claim to have demonstrated an intent not to use drugs in the future. “As a matter of common sense, one Directive ¶ E2.26(b). “(1) [D]isassociation from drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used; (3) an appropriate period of abstinence[.]” See ISCR Case No. 02-22603 at 6 (App. Bd. Sep. 3, 2004): “. . . the Judge’s decision cannot simply be silent about what, as a matter of common sense, appears to be . . . an important aspect of the case.” See Tr. at 96-99. “Q: [F]rom about 2000 to 2005, your marijuana use was approximately one to two times a year? A: Yes . . . Q: Now, you started working . . . for [defense contractor] in 2003. Correct? A: Yes. . . Q: So, you at least understood that you shouldn’t be using illegal drugs when you started working at [defense contractor]? A: Based on the drug test . . . Q: [H]ow often did you have to take that drug test . . . .A: One time . . . there is a time period within your application or within your acceptance letter, I think that’s it . . . Q: So, do you recall when the drug test was? A: It would have been around December 2003.” would expect that a person who has taken a drug test as a condition of employment would understand the importance of future abstention. That Applicant used marijuana after such a test raises a substantial question as to whether she has demonstrated a serious intent to obey the law or whether she has refrained from drug use simply in order to qualify for employment.” ISCR Case No. 06-18270 at 3 (App. Bd. Nov. 7, 2007). In the case under consideration here, the Judge noted Applicant’s having used marijuana after completing his SCA in evaluating whether the Government has presented a prima facie case for Guideline H disqualifying conditions. However, he did not provide a serious discussion of Applicant’s future intent in the context of Applicant’s burden of persuasion as to mitigation. To the contrary, the Judge’s analysis of future intent consisted simply in repeating almost verbatim three of the illustrative examples listed under DIMC 26(b). Such conclusory language does not explain why it is that Applicant can be said to have demonstrated, rather than merely having promised, an intent to refrain from future drug use. While Judges are presumed to have considered all the record evidence, some matters, such as those under discussion here, are sufficiently significant to warrant discussion of them. The Judge’s decision is deficient in that regard . Department Counsel also contends that the Judge erred in concluding that Applicant’s having used marijuana after submitting his SCA did not raise a security concern under Guideline E. Again, the Board finds this argument persuasive. The disqualifying conditions listed under each Guideline are illustrative only, not exhaustive and exclusive. In analyzing cases before them, Judges must be guided by common sense and with a view toward making a reasoned determination consistent with the interests of national security. The general security concern raised by Guideline E is that “[c]onduct involving questionable judgment . . . or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information.” Directive ¶ E2.15. The Board agrees with Department Counsel that Applicant’s having used marijuana despite his employer’s policy against such activity, and his use after submitting his SCA, raise serious questions about his judgment and, therefore, his fitness for a clearance. Under the facts of this case, this activity raises a security concern under Guideline E, and the Judge’s decision on this matter should have been made in the context of Applicant’s burden of persuasion as to mitigation. The Judge’s conclusion that the Government had not met its initial burden of producing substantial evidence of a Guideline E security concern is not sustainable. The Board concludes that the best way to address the errors described above is to remand the case to the Judge for a new decision. This decision should examine the extent to which Applicant has met his burden of persuasion, both as to mitigation as well as to the whole-person, under both Guidelines E and H. In doing so, the decision should address the extent to which Applicant’s circumstances fall within the precedent set forth in ISCR Case No. 06-18270 supra.

ORDER

The Judge’s favorable security clearance decision is REMANDED. 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