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ISCR 12-06635.a1: Guideline H security clearance appeal, denied (2014) · CASE

ISCR Case 12-06635.a1denied

Case headnote

ISCR Case No. 12-06635.a1

Mar 28, 2014· Hon. Michael Y. Ra'anan· appeal

Summary

A pro se applicant was denied a security clearance under Guideline H (Drug Involvement) after using marijuana twice while already holding a clearance. The denial was based on the applicant's failure to mitigate the security concerns raised by this drug use.

Specifically, the applicant's two instances of marijuana use while cleared triggered disqualifying condition H.1. The judges determined that the applicant did not present sufficient evidence to mitigate the seriousness of these actions. Furthermore, the applicant's assertion that she was unaware of her clearance status at the time of the drug use was contradicted by her own statements within her security clearance application.

Given these factors, the judges concluded that the applicant had not adequately addressed the security concerns, resulting in the denial of her security clearance.

Conditions referenced

Disqualifying

H.1raisedDrug Involvement

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 issuedJul 24, 2013
Answer filed—Applicant requested a decision on the written record.
Hearing heldJan 21, 2014Decision made by Administrative Judge Richard A. Cefola.
Decision dateMar 28, 2014Appeal affirmed by the Appeal Board.

Cite for

Denial of Security Clearance Due to Drug Involvement Under Guideline H
Insufficient Mitigation of Drug Use Despite Time Elapsed Since Last Use
Importance of Awareness of Clearance Status in Drug-related Cases

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 was regarding the denial of a security clearance based on drug involvement under Guideline H. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding that the Judge's conclusions were supported by substantial evidence and that the applicant did not successfully rebut the presumption that all evidence was considered.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRichard A. Cefola denied the clearance

Decided onthe written record

Guidelines belowGuideline H

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant argued that the Judge's decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision, affirming that the Judge properly considered the evidence and applied the relevant guidelines.

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)
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 has not successfully rebutted the presumption that the Judge considered all the evidence. Adverse decision affirmed. CASENO: 12-06635.a1 DATE: 03/28/2014 DATE: March 28, 2014 In Re: --------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 12-06635

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 July 24, 2013, DoD 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 January 21, 2014, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Richard A. Cefola 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 decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant was granted a clearance following the submission of a security clearance application (SCA) in June 2011. After that, Applicant used marijuana twice. The Judge’s Analysis The Judge concluded that Applicant’s having smoked marijuana twice while holding a security clearance raised concerns under Guideline H that she had not mitigated. Noting that she had declined to submit a reply to the File of Relevant Material (FORM), he stated that the evidence left him with doubts about her suitability for a clearance. He stated that there was nothing unusual about the circumstances of Applicant’s use that would mitigate its seriousness.

DISCUSSION

Applicant argues that her two instances of experimentation with marijuana do not constitute drug abuse. However, the Directive defines drug abuse as “the illegal use of a drug,” and does not distinguish between experimentation and more frequent or habitual uses. Directive, Enclosure 2 ¶ 24(b). Moreover, Applicant’s first SCA explicitly states that “use of a controlled substance includes . . . experimenting with . . . any controlled substance.” Item 4 at 26. Although frequency of use is relevant in evaluating the security significance of such conduct, the Judge did not err in concluding that Applicant’s circumstances raised concerns under Guideline H. Applicant states that she was not aware that she had been given a “full” clearance at the time she smoked marijuana. However, in her 2012 SCA and her reply to the SOR, she admitted to having held a clearance at the time of her misconduct, although she stated that she believed it to have been an interim clearance. We find no error in the Judge’s finding on this matter. At the very least, Applicant’s having completed and submitted an SCA was sufficient to have placed her on notice that any illegal use of drugs was inconsistent with holding a clearance. See ISCR Case No. 09-00233 at 2 (App. Bd. Nov. 13, 2009) (The applicant’s security significant conduct included two uses of marijuana after having submitted an SCA). Applicant cites to evidence that over two years have elapsed since her last use of marijuana, as well as evidence of her youth at the time and that she has never been involved with the law. A Judge is presumed to have considered all of the evidence in the record, and Applicant’s argument on appeal is not sufficient to rebut that presumption. See, e.g., ISCR Case No. 09-07472 at 2 (App. Bd. Feb. 24, 2011). Given the record before him, and considering that Applicant provided no response to the FORM, we cannot say that the Judge’s treatment of the evidence, including evidence favorable to Applicant, was erroneous. Applicant challenges the Judge’s whole-person analysis, contending that he did not properly weigh all of the factors listed in Directive, Enclosure 2 ¶ 2(a). We conclude that the Judge considered the totality of the evidence in reaching his decision, which is the hallmark of a whole- person analysis. See, e.g., ISCR Case No. 13-00311 at 4 (App. Bd. Jan. 24, 2014). Applicant bears the burden of persuasion as to mitigation, and a paucity of evidence on matters relevant and material to a clearance decision is a proper matter for the Judge to consider in deciding whether she has met her burden. See, e.g., ISCR Case No. 12-00270 at 2-3 (App. Bd. Jan. 17, 2014). The Judge examined the relevant data 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, Enclosure 2 ¶ 2(b): “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”

ORDER

The Decision is AFFIRMED. Signed; Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, 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