CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 10-04042.a1 — CASE

ISCR Case 10-04042.a1denied

Case Headnote

ISCR Case No. 10-04042.a1

Oct 4, 2011· Hon. Jean E. Smallin· appeal

Summary

A security clearance applicant, representing himself, was denied clearance primarily under Guideline H (Drug Involvement). The applicant had a prolonged history of marijuana use, spanning from 1999 until January 2010. This history included an arrest in May 2002 for possession with intent to distribute marijuana.

While the judge found in the applicant's favor regarding Guideline E (Personal Conduct), the mitigating evidence presented was ultimately deemed insufficient to alleviate the government's security concerns related to drug involvement.

Consequently, despite the favorable finding under Guideline E, the significant and sustained drug use history, coupled with the arrest for distribution, led to the denial of the applicant's security clearance.

Conditions Referenced

Disqualifying

HraisedDrug Involvement

Mitigating

EappliedPersonal Conduct

Key Rule Quoted

“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 issuedNov 17, 2010
Answer filed—
Hearing heldAug 8, 2011
Decision dateOct 4, 2011

Cite For

Insufficient Mitigating Evidence Under Guideline H
Impact of Drug Involvement on Security Clearance
Weighing of Evidence in Security Clearance Decisions

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 drug involvement and personal conduct issues. The applicant argued that the Judge's decision was arbitrary and capricious, but the Board affirmed the denial, finding that the Judge reasonably weighed the evidence and explained why the mitigating factors were insufficient to overcome security concerns. The Board concluded that the Judge's decision was sustainable and consistent with national security interests.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowThomas M. Crean — denied the clearance (split findings)

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 clearance 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 decision, including a rational connection between the facts found and the choice made.

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
James E. Moody
William S. Fields

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: Applicant used marijuana from 1999 to January 2010 and had purchased marijuana. Applicant had also been arrested in May 2002 on possession of marijuana with intent to distribute marijuana charges. Although the Judge found in favor of Applicant with respect to the Guideline E allegations, he reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns under Guideline H. Adverse decision affirmed. CASE NO: 10-04042.a1 DATE: 10/04/2011 DATE: October 4, 2011 In Re: ---------------------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 10-04042

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 November 17, 2010, DOHA issued a statement of reasons (SOR) 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 August 8, 2011, after the hearing, Administrative Judge Thomas M. Crean denied Applicant’s request for a security clearance. Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse clearance decision is arbitrary, capricious or contrary to law. Applicant seeks reversal of the Judge’s adverse decision arguing that the evidence demonstrates that Applicant has mitigated the security concerns raised by his drug involvement. In support of his argument, he presents a detailed summary of the evidence presented at the hearing, and resubmits the record from below along with a copy of the Judge’s decision. He also submits some new evidence, which the Board cannot consider on appeal. See Directive ¶ E3.1.29. Applicant’s presentation does not demonstrate that the Judge’s decision is arbitrary, capricious or contrary to law. Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. A party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 10-00278 at 2 (App. Bd. Mar. 18, 2011). In this case, the Judge made sustainable findings—consistent with Applicant’s own admissions—that Applicant had used marijuana from approximately 1999 to at least January 2010, and had purchased marijuana. Applicant had also been arrested in May 2002 on charges of Possession of Marijuana with Intent to Distribute Within Proximity of a School and Possession of Marijuana with Intent to Distribute, and had subsequently pleaded guilty to an amended charge of Drugs Manufacturing/Possession of Other Substance. Decision at 2, 3, 4, 6 and 8; Answer at 1-2; GE 1 (eQIP, dated Jan. 4, 2010) at 36-37; GE 2 (Interrogatories). In his brief, Applicant acknowledges that “. . . [he] can understand for a reason like that why [he had] gotten denied . . . a clearance and a trust issue was raised.” Applicant’s Brief at 1. A review of the decision indicates that the Judge weighed the mitigating evidence offered by Applicant—including his efforts at rehabilitation, his favorable work performance and letters of recommendation, and recent negative drug tests—against the length and seriousness of the disqualifying conduct, and considered the possible application of relevant conditions and factors. Decision at 3, 4, 6 and 8. Although the Judge found in favor of Applicant with respect to the Guideline E allegations, he reasonably explained why the mitigating evidence was insufficient to overcome the government’s security concerns under Guideline H. Id. The Board does not review a case de novo. After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice 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). Therefore, the Judge’s unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board