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ISCR Case 14-02203.a1 — CASE

ISCR Case 14-02203.a1denied

Case Headnote

ISCR Case No. 14-02203.a1

Mar 30, 2015· Hon. Jeffrey D. Billett· appeal

Summary

This security clearance application, submitted by a government contractor, was ultimately DENIED. The denial was primarily based on concerns under Guideline H (Drug Involvement), specifically multiple instances of marijuana use while the applicant already held a security clearance.

Although the judge found favorable mitigating conditions under Guideline E (Personal Conduct), these were insufficient to overcome the significant security concerns raised by the drug use. The judge determined that the applicant's repeated marijuana use demonstrated a lack of self-discipline and trustworthiness.

A key factor in the denial was the finding that the five years that had passed since the applicant's last marijuana use did not adequately mitigate these concerns. Furthermore, the applicant's conduct was not considered youthful indiscretion due to his age at the time of the misconduct.

Conditions Referenced

Disqualifying

HraisedDrug Involvement

Mitigating

EappliedPersonal Conduct

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 16, 2014
Answer filed—
Hearing heldDec 1, 2014
Decision dateMar 30, 2015

Cite For

Evaluation of Drug Use While Holding a Security Clearance Under Guideline H
Importance of Whole-person Analysis in Security Clearance Decisions
Standards for Mitigating Security Concerns Related to Drug Involvement

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 filed by the applicant after the Administrative Judge denied his request for a security clearance based on drug involvement and personal conduct. The applicant argued that the Judge's decision was arbitrary and that he had mitigated the concerns due to the time elapsed since his last drug use. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCarol G. Ricciardello — denied the clearance

Decided ona hearing

Guidelines belowGuideline DGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge's adverse decision was arbitrary, capricious, or contrary to law.
Judge mis-weighed or ignored evidence — raised by the applicantRejected
The Judge did not properly apply the whole-person concept.

Why the Board ruled this way

The Board found that the Judge's whole-person analysis complied with the requirements of the record and that the adverse decision was supported by substantial evidence.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference to the judge’s credibility calls

Appeal Board panel

Jeffrey D. Billett
Jean E. Smallin
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 D; Guideline E DIGEST: There is no particular length of time that would place an applicant’s drug use sufficiently in the past so as to mitigate concerns arising therefrom. That is a matter within the discretion of the Judge. The Judge’s whole-person analysis complied with the requirements of the record. Adverse decision affirmed. CASE NO: 14-02203.a1 DATE: 03/30/2015 DATE: March 30, 2015 In Re: ---------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 14-02203

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 16, 2014, DoD 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). Department Counsel requested a hearing. On December 1, 2014, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Carol G. Ricciardello 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 properly applied the whole-person concept and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. The Judge’s favorable findings under Guideline E are not at issue in this case. Consistent with the following, we affirm the Judge’s decision. The Judge’s Findings of Fact Applicant graduated from college in 2000 and has worked for a Government contractor since 2006. He has held a security clearance since that time. Applicant used marijuana in 2005 while visiting a country in which such conduct was legal. However, he used marijuana again, twice in 2007 and once in 2009. These last three uses occurred while Applicant held a security clearance. He was in his thirties at the time of his misconduct. He has promised not to use marijuana again, contending that he has become more aware of the importance of his security clearance. He noted that it has been five years since his last use. He has an excellent work record. The Judge’s Analysis The Judge resolved the Guideline E allegation in Applicant’s favor. This allegation concerned Applicant’s continued association with persons who used drugs. She found credible his evidence that he had advised his friends not to use marijuana in his presence. However, she concluded that he had not mitigated concerns arising from his having used marijuana on multiple occasions while holding a security clearance. She stated that, given his age at the time, his conduct could not be attributed to youthful indiscretions. She stated that the five years that have elapsed since his marijuana use are not enough to mitigate concerns about his lack of self-discipline. She stated that he did not recognize, or ignored, the importance of his obligations and that he had violated the trust that the Government had placed in him.

DISCUSSION

Applicant cites to evidence of the length of time since his security-significant conduct and to other evidence that is favorable to him, for example that he has a family and has matured. He argues that he should not lose a clearance due to what he characterizes as “infrequent poor decisions.” Appeal Brief at 2. We have never specified a particular length of time that would place an applicant’s drug use sufficiently in the past so as to mitigate security concerns arising therefrom. See, e.g., ISCR Case No. 11-09172 at 3 (App. Bd. Mar. 19, 2013). We have left that matter in the discretion of the Judge, to be evaluated along with all the other evidence in the record. In this case, the record includes evidence that Applicant did not merely use marijuana three times but that he did so while holding a clearance. Questions on his security clearance application (SCA), completed in late 2005, about any prior use while holding a clearance should have placed him on notice of the importance that the Government attached to such conduct and the deleterious effect it could exert on his effort to retain a clearance. Government Exhibit 3, SCA, dated September 9, 2005, at 35. See ISCR Case No. 12-06635 at 2 (App. Bd. Mar. 28, 2014). A reasonable person could find that Applicant’s use of marijuana despite this notice casts doubt on his reliability and judgment. Under the facts of this case, we are not able to say that the Judge mis-weighed the evidence or that her adverse conclusions were arbitrary, capricious, or contrary to law. We conclude that the Judge considered Applicant’s security-significant conduct in light of the entirety of the record evidence, thereby satisfying the Directive’s requirement for a whole-person analysis. See ISCR Case No. 12-03077 at 2-3 (App. Bd. May 13, 2013). 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: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board