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ISCR Case 14-00246.a1 — CASE

ISCR Case 14-00246.a1denied

Case Headnote

ISCR Case No. 14-00246.a1

Nov 10, 2014· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance holder since 2007 was denied continued clearance under Guideline H (Drug Involvement) due to a history of drug use. The applicant's drug involvement spanned from 2003 to 2011 and included marijuana and hallucinogenic mushrooms, raising significant security concerns under disqualifying condition H1.

Despite the applicant's assertion of abstinence since 2011 and a willingness to sign a statement of intent, the appeal board found insufficient evidence to mitigate these concerns. A key factor in the denial was the applicant's failure to provide adequate evidence, particularly regarding a 2011 incident.

Furthermore, the judge was unable to assess the applicant's credibility because the decision was made solely on a written record. Ultimately, the board emphasized national security in its adjudication, leading to the denial of the applicant's security clearance.

Conditions Referenced

Disqualifying

H1raisedDrug 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 issuedMar 21, 2014
Answer filed—
Hearing heldAug 26, 2014decision on the written record
Decision dateNov 10, 2014

Cite For

Insufficient Evidence to Mitigate Drug Involvement Under Guideline H
Importance of National Security in Clearance Adjudications
Presumption That Judges Consider All Evidence in the Record

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 under Guideline H. The applicant argued that the Judge did not consider all evidence and misapplied mitigating conditions. The Board affirmed the Judge's decision, finding no harmful error in her analysis.

Appealed bythe applicant

Applicant representationAttorney

Judge belowNoreen A. Lynch — denied the clearance

Decided onthe written record

Guidelines belowGuideline H

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge did not take into account his excellent work record, his abstinence from drug use since 2011, and his willingness to sign a statement of intent.
Mitigation wrongly applied / not applied — raised by the applicantRejected
Applicant argued that the Judge erred in her application of the mitigating conditions.

Why the Board ruled this way

The Board found that the Judge's conclusions were supported by substantial evidence and that she did not misapply the mitigating conditions. The Judge's findings were consistent with the record, and her decision was not arbitrary or capricious.

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 failed to rebut the presumption that the Judge considered all of the evidence. Hearing Office Cases are not binding on other Hearing Office Judges or on the Appeal Board. CASE NO: 14-00246.a1 DATE: 11/10/2014 DATE: November 10, 2014 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-00246

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On March 21, 2014, 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 August 26, 2014, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Noreen A. Lynch denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge considered all of the evidence in the record and whether the Judge erred in her application of the mitigating conditions. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant has held a security clearance since around 2007. He completed his first security clearance application in that year. He enjoys an excellent reputation for the quality of his work performance, as well as his skills at communication and leadership. Applicant consumed marijuana while he was in college. He did so on multiple occasions from 2003 until 2005. He bought marijuana during this period of time, and he used hallucinogenic mushrooms from 2003 to 2004. In addition, he used marijuana in 2011, while holding a security clearance. He states that this was a single lapse in judgment. He was a full-time employee of his current employer at the time. He states that he has used no illegal drugs since then and has no intention to do so in the future. Applicant continues to socialize with people who use marijuana, although he states that, when the drug is offered to him, he declines. He contends that the facts contained in the File of Relevant Material (FORM), although correctly stated, have not been correctly interpreted. He states that he poses no risk to national security and that he has voluntarily disclosed his drug use. He denies that his circumstances illustrate “drug abuse.” He contends that his use of drugs was so long ago as to lack security significance. He has expressed a willingness to sign a statement of intent not to use drugs in the future. He cites to his having held a clearance since 2007. He contends that the evidence shows his commitment to the national interest. The Judge’s Analysis In concluding that Applicant had failed to mitigate the concerns in his case, the Judge cited to his history of drug use from 2003 until 2011. Although Applicant contended that the latest incident was isolated, the Judge noted that he had failed to describe the particular event that caused his lapse in judgment beyond that the marijuana use occurred at a music festival. She stated that Applicant understands the consequence of the use of illegal drugs. However, insofar as Applicant provided no information about the 2011 incident, the Judge stated that she could not make a firm conclusion that his drug use was behind him. In the whole-person analysis, the Judge stated that, insofar as Applicant had chosen a decision on the written record, she had been unable to evaluate his demeanor, appearance, or credibility. She reiterated that Applicant had failed to provide evidence clarifying the 2011 incident. In light of the standard governing clearance adjudications, the Judge stated that Applicant had failed to mitigate the concerns in his case.

DISCUSSION

Applicant contends that the Judge did not take into account his excellent work record, his abstinence from drug use since 2011, and his willingness to sign a statement of intent. A Judge is presumed to have considered all of the evidence in the record. See, e.g., ISCR Case No. 12-03970 at 3 (App. Bd. Sep. 30, 2014). In this case the Judge made specific findings about the matters that Applicant has cited in his appeal brief. Applicant’s arguments are not sufficient to rebut the presumption that the Judge considered all of the evidence or that she mis-weighed the evidence. Applicant has cited to some hearing office cases that, he argues, support his case for a clearance. We have given these cases due consideration as persuasive authority. However, Hearing Office cases are not binding on other Hearing Office Judges or on the Appeal Board. Id. Applicant’s citation to these case is not enough to show that the Judge’s decision was arbitrary, capricious, or contrary to law. We have considered Applicant’s arguments about the Judge’s application of the mitigating conditions. The Judge’s conclusions about the paucity of mitigating evidence were consistent with the record that was before her and support her adverse decision. See, e.g., ISCR Case No. 12-05607 at 3 (App. Bd. Sep. 5, 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: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board