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ISCR Case 15-00802.a1 — CASE

ISCR Case 15-00802.a1denied

Case Headnote

ISCR Case No. 15-00802.a1

May 17, 2016· Hon. Michael Y. Ra'anan· appeal

Summary

A 57-year-old defense industry employee was denied a security clearance under Guideline H (Drug Involvement) due to a history of long-term marijuana use. The applicant's extensive use demonstrated an inability or unwillingness to comply with laws and regulations, raising a disqualifying condition under Adjudicative Guideline (AG) ¶ 25.

While the applicant had recently abstained from marijuana and provided a signed statement of intent to remain drug-free, the judge found these mitigating conditions (AG ¶ 26) insufficient. The decision noted that the applicant's change in attitude towards marijuana appeared primarily motivated by the pending security clearance process.

Ultimately, the judge concluded that the applicant did not present sufficient evidence to demonstrate a firm and lasting commitment to a drug-free lifestyle, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 25raisedDrug Involvement

Mitigating

AG ¶ 26rejectedAbstinence From Drug UseThe judge found that the applicant's recent period of abstinence did not demonstrate a firm commitment to a drug-free lifestyle.

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 issuedAug 7, 2015
Answer filed—
Hearing heldMar 18, 2016
Decision dateMay 17, 2016

Cite For

Denial of Security Clearance Due to Long-term Drug Involvement Under Guideline H
Insufficient Evidence of Commitment to a Drug-free Lifestyle Despite Recent Abstinence
Affirmation of Adverse Decisions Based on the Totality of Evidence Considered by the Judge.

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 seeking a security clearance who was denied based on drug involvement under Guideline H. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMichael H. Leonard — denied the clearance

Decided ona hearing

Guidelines belowGuideline H

What the Board reviewed

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

Why the Board ruled this way

The Board found that the Judge considered all evidence and articulated a satisfactory explanation for the decision, which was sustainable on the record. The applicant's arguments did not demonstrate that the Judge's decision was arbitrary, capricious, or contrary to law.

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

Michael Y. Ra’anan — Chair
William S. Fields
James F. Duffy

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 rebutted the presumption that the Judge considered all the evidence. Adverse decision affirmed. CASENO: 15-00802.a1 DATE: 05/17/2016 DATE: May 17, 2016 In Re: --------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-00802

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 August 7, 2015, 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 hearing. On March 18, 2016, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Michael H. Leonard 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 adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant, who is 57 years old, works in the defense industry. He received a bachelor’s degree in 1982. On a security clearance application submitted in August 2012, he estimated that he used marijuana a couple of times a year from 1975 to March 2012, including while possessing a security clearance. He also stated that, because he completely stopped consuming alcohol after his last driving under the influence of alcohol arrest in 2003, he found occasional and moderate use of marijuana a viable substitute to the much more destructive, yet legal, consumption of alcohol. He stated that he intended to use marijuana in the future. During a background interview in October 2012, Applicant provided further details of his marijuana involvement, including that he purchased it in the past. He stated that he did not associate with known drug dealers. He intended to maintain his then-current pattern of using marijuana once a month, but would stop using it if required for his security clearance. At the hearing, Applicant stated that he regretted his use of marijuana and would not try to justify his usage. He submitted a signed statement of intent pledging not to use any illegal drug, including marijuana, while possessing a security clearance and agreeing to automatic revocation of his security clearance if he did so. He last used marijuana in August 2015, shortly before receiving the SOR. He conceded that his change in attitude about marijuana was due to the pending security clearance proceeding, but he thinks he most likely would have discontinued its use in any case. The Judge found that Applicant was polite, respectful, and answered questions in a direct manner. He also noted that Applicant impressed him as an intelligent and capable individual. The Judge’s Analysis The Judge gave Applicant credit for disclosing his marijuana involvement. The Judge concluded that, even though Applicant should have known that his marijuana use was a security concern after his submission of the security clearance application and background interview in 2012, he continued to use marijuana until August 2015. The Judge noted that Applicant expressed an intent to continue using marijuana in his security clearance application and background interview. Although he later stated he had no intention to continue using marijuana, the Judge concluded Applicant did not present sufficient evidence to demonstrate an intention to not use it in the future. The Judge found that Applicant’s use of marijuana over a 40-year period showed an inability or unwillingness to comply with laws, rules, and regulations. The Judge determined that, while Applicant’s recent period of abstinence was commendable, he did not meet his burden of proof to show a firm commitment to a drug-free lifestyle.

DISCUSSION

Applicant contends that the Judge did not consider all of the evidence in the record. For example, he cites to his statement of intent to not use illegal drugs while possessing a security clearance and his abstinence from using marijuana since August 2015. The Judge made findings about the evidence that Applicant has cited and addressed it in his Analysis. Applicant has not rebutted the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 12-05959 at 2 (App. Bd. Apr. 6, 2016). Applicant also argues that the Judge should have found the security concerns mitigated. This argument amounts to a disagreement with the Judge’s weighing of the evidence, which is not sufficient to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 14-04719 at 2 (App. Bd. Apr. 6, 2016). We give due consideration to the Hearing Office case that Applicant has cited, but it is neither binding precedent on the Appeal Board nor sufficient to undermine the Judge’s decision. See, e.g., ISCR Case No. 14-03747 at 3 (App. Bd. Nov. 13, 2015). The Judge’s consideration of the totality of the evidence in reaching his decision complies with the whole-person analysis requirements. See Directive, Enclosure 2 ¶ 2 and ISCR Case No. 14-02806 at 4 (App. Bd. Sep. 9, 2015). The Judge examined the relevant evidence 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 F. Duffy James F. Duffy Administrative Judge Member, Appeal Board