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ISCR Case 15-06277.a1 — CASE

ISCR Case 15-06277.a1denied

Case Headnote

ISCR Case No. 15-06277.a1

Jul 19, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A 40-year-old married man with a doctoral degree was denied a security clearance under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The denial stemmed from a lengthy history of illegal drug use, specifically marijuana, which continued even after he had initially been granted a clearance.

The disqualifying conditions cited were H.1 (drug involvement) and E.2 (personal conduct). While mitigating conditions H.2 and E.3 were considered, they were ultimately deemed insufficient. The judge found the applicant's claims of abstention from drug use lacked credibility, concluding that his cessation of drug use appeared primarily motivated by job preservation rather than a genuine change in behavior.

The appeal board affirmed the denial, agreeing that the applicant's arguments for mitigation were insufficient given his past conduct. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

H.1raisedDrug Involvement
E.2raisedPersonal Conduct

Mitigating

H.2rejectedAbstinence From Drug UseThe judge concluded that the applicant's less than five years of abstention was insufficient to mitigate the concerns.
E.3rejectedPositive Character EvidenceThe judge found that the applicant's positive character evidence did not outweigh the concerns raised by his drug use.

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 issuedApr 27, 2016
Answer filed—
Hearing heldMay 9, 2017
Decision dateJul 19, 2017

Cite For

Evaluation of Drug Involvement Under Guideline H
Credibility of Abstention From Drug Use as a Mitigating Factor
Impact of Past Drug Use on Security Clearance Eligibility

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 concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). 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 of the evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMatthew E. Malone — denied the clearance

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 decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's conclusions were supported by substantial evidence and articulated a satisfactory explanation for the decision, affirming that the adverse 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 Ra’anan — Chair
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 is arguing for an alternative interpretation of the evidence, which is not enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Adverse decision affirmed. CASENO: 15-06277.a1 DATE: 07/19/2017 DATE: July 19, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 15-06277

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 April 27, 2016, 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). Applicant requested a hearing. On May 9, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Matthew E. Malone 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. The Judge’s favorable findings under Guideline E are not at issue in this appeal. Consistent with the following, we affirm. The Judge’s Findings of Fact 40 years old, Applicant is married with two children. He holds a doctoral degree and has held his current job since 2013. He worked for a prior Defense contractor between 2005 and 2007 in a position in which he held a clearance. Applicant illegally used marijuana from 1994 to 2012, purchasing it for personal use. He used marijuana after having been granted a clearance in 2006. In his response to the SOR, Applicant stated that he came from a culture in which marijuana use was generally accepted. He also stated, inter alia, that he did not believe that marijuana use while holding a security clearance justifies an adverse clearance determination. Applicant has exhibited technical leadership and has received several professional and academic awards. Each of his character witnesses testified that he is a valuable asset to the employer and that he is honest and reliable. The Judge’s Analysis The Judge cited to evidence that Applicant’s drug use continued well into his adult years. He noted Applicant’s statement that he came from a culture that accepted marijuana use. However, the Judge stated that the requirement that clearance holders abstain from such conduct is “not negotiable.” Decision at 6. The Judge also cited to a document signed by Applicant abjuring further similar misconduct with automatic revocation of his clearance should he re-offend. However, he concluded that the benefit of this promise is diminished by evidence suggesting that Applicant has forsworn marijuana simply in the interests of his job. Given the entirety of the circumstances, the Judge concluded that Applicant’s less than five years’ abstention was not enough to mitigate the concerns alleged against him under Guideline H. In the whole-person analysis, the Judge noted Applicant’s positive character evidence. However, he concluded that Applicant’s lengthy history of illegal drug use, including such conduct after having received a clearance, precluded a favorable determination.

DISCUSSION

Applicant challenges the Judge’s conclusion that his abstention was merely in order to preserve his job. He argues that he could obtain employment from any number of sources that would not require him to give up smoking marijuana and that he made a deliberate decision to give up marijuana in order the serve the U.S. Applicant is arguing for an alternative interpretation of the evidence, which is not enough 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. 15-08842 at 3 (App. Bd. Feb. 14, 2017). The challenged conclusion is consistent with the record that was before the Judge. Applicant argues that he had demonstrated mitigation due, in part, to his nearly five years of abstention. However, we have not drawn a bright-line rule regarding recency of misconduct. The extent to which security concerns have become mitigated through the passage of time is a question that must be resolved based on the evidence as a whole. See, e.g., ISCR Case No. 14- 01847 at 3 (App. Bd. Apr. 9, 2015). Applicant’s drug use after having completed a clearance application and after having been granted a clearance is a significant factor in evaluating his judgment and reliability. See, e.g., ISCR Case No. 14-03450 at 3 (App. Bd. Sep. 11, 2015). Under the facts of this case, we find no reason to disturb the Judge’s conclusion regarding the recency of Applicant’s security-significant conduct. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision, both as to the mitigating conditions and the whole-person factors. 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, Encl. 2 App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

ORDER

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