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ISCR Case 08-00177.a1 — CASE

ISCR Case 08-00177.a1denied

Case Headnote

ISCR Case No. 08-00177.a1

Nov 21, 2008· Hon. Jeffrey D. Billett· appeal

Summary

A 54-year-old engineer was denied a security clearance under Guideline H (Drug Involvement) due to a history of extensive marijuana use. The applicant admitted to using marijuana over 100 times between 1972 and 2007.

Despite stating he would not use marijuana again, the applicant also admitted he would use it if offered. This admission led the judge to conclude that the applicant had not mitigated the security concerns raised by his past drug involvement. The judge specifically found the applicant to be an unlawful user of marijuana, which is a disqualifying condition for a security clearance.

The appeal board affirmed the denial, agreeing that granting a clearance would not be consistent with national security interests. The decision highlighted that the applicant's stated willingness to use marijuana again, if presented with the opportunity, undermined his claims of abstinence and prevented the application of mitigating conditions.

Conditions Referenced

Disqualifying

AG ¶ 24raisedDrug Involvement

Mitigating

AG ¶ 25rejectedMitigating ConditionsThe judge concluded that the mitigating conditions did not apply to the applicant's case.

Key Rule Quoted

“The presence of some mitigating evidence does not compel a favorable overall security clearance decision.”
— ISCR Case No. 05-03452 at 3 (App. Bd. Jul. 3, 2007)

Procedural Posture

SOR issuedJun 25, 2008
Answer filed—
Hearing heldSep 19, 2008Applicant requested a decision on the written record.
Decision dateNov 21, 2008

Cite For

Denial of Security Clearance Due to Extensive Drug Use Under Guideline H
Impact of Admissions Regarding Future Drug Use on Security Clearance Decisions
Affirmation of Adverse Decisions Based on Lack of Mitigation of Security Concerns

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 the applicant's extensive history of marijuana use. The applicant contended that he had mitigated the security concerns. The Board affirmed the Administrative Judge's decision, finding no error in the conclusion that the applicant remained an unlawful user of marijuana and did not meet the burden of persuasion for clearance.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowClaude R. Heiny — denied the clearance

Decided onthe written record

Guidelines belowGuideline H

What the Board reviewed

Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argued that the Judge erred in failing to conclude that he had mitigated the security concerns in his case.

Why the Board ruled this way

The Board found no error in the Judge's conclusion that security concerns under Guideline H were raised in Applicant's case and that the Judge properly analyzed the evidence presented.

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 Y. Ra’anan — Chair
Jeffrey D. Billett
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 over 100 times between 1972 and 2007. He stated that he does not intend to use marijuana again but that he would if it was offered to him. The record supports the Judge’s conclusion that Applicant is an unlawful used of marijuana. Adverse decision affirmed. CASENO: 08-00177.a1 DATE: 11/21/2008 DATE: November 21, 2008 In Re: ------------------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-00177

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On June 25, 2008, DOHA issued a statement of reasons (SOR) 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 decision on the written record. On September 19, 2008, after considering the record, Administrative Judge Claude R. Heiny denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge erred in failing to conclude that Applicant had mitigated the security concerns in his case. Finding no error, we affirm. The Judge made the following pertinent findings of fact: Applicant is a fifty-four year old engineer who has worked for a defense contractor since 2006. He used marijuana over 100 times between 1972 and February 2007. Applicant has stated the he does not intend to use marijuana again but that he would if it was offered to him. Applicant denies using marijuana while holding a security clearance at any time other than a single incident in 1974 In analyzing the case, the Judge discussed the period of time since Applicant’s last use and the circumstances of that use. He noted that Applicant has used marijuana most of his adult life and concluded that Applicant is an unlawful user of marijuana and is covered by the statutory prohibition regarding the grant of security clearances to unlawful users of a controlled substance. On appeal Applicant offer new evidence which the Board may not consider (See Directive, ¶ E3.1.29.) The Board has considered Applicant’s brief, the Judge’s decision, and the record. The Judge properly concluded security concerns under Guidelines H are raised in Applicant’s case. Furthermore, the Judge drew a “rational connection between the facts found” and his conclusion that neither the Guidelines H and J mitigating conditions nor the whole-person factors support a decision favorable to Applicant. See 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 Judge’s decision reflects consideration of the entire record, including the evidence favorable to Applicant. However, the presence of some mitigating evidence does not compel a favorable overall security clearance decision. See, e. g., ISCR Case No. 05-03452 at 3 (App. Bd. Jul. 3, 2007). The record supports the Judge’s conclusion that Applicant has failed to meet his burden of persuasion that it is “clearly consistent with the interests of the national security” for him to have a clearance. See Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board