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ISCR Case 16-00578.a1 — CASE

ISCR Case 16-00578.a1denied

Case Headnote

ISCR Case No. 16-00578.a1

Sep 26, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A 36-year-old federal contractor employee was denied a security clearance under Guideline H (Drug Involvement and Substance Misuse) and Guideline E (Personal Conduct). The primary concern was her recent marijuana use, which raised significant doubts about her reliability and trustworthiness.

The applicant failed to provide sufficient evidence to assure that she would abstain from future marijuana use. The judge also noted that her employer presumably maintained a drug-free workplace policy, a factor that further weighed against granting the clearance.

Ultimately, the appeal board affirmed the denial, finding no error in the judge's assessment of the evidence or the application of the relevant guidelines. The denial was based on the applicant's inability to mitigate the concerns related to her drug involvement and personal conduct.

Conditions Referenced

Disqualifying

H1raisedDrug Involvement

Mitigating

E2rejectedHonesty in the Security Clearance ProcessThe judge acknowledged the applicant's honesty but found it insufficient to mitigate the concerns.

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 30, 2016
Answer filed—
Hearing heldJul 6, 2017Decision on the written record.
Decision dateSep 26, 2017

Cite For

Affirmation of Denial Based on Recent Drug Use Under Guideline H
Insufficient Mitigation Evidence Regarding Drug Involvement
Consideration of Employer's Drug-free Workplace Policy in Security Clearance Decisions

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 and Guideline E. The applicant argued that the Judge's decision was arbitrary and capricious, but the Board affirmed the decision, finding no harmful error in the Judge's analysis or conclusions.

Appealed bythe applicant

Applicant representationAttorney

Judge belowMichael H. Leonard — denied the clearance

Decided onthe written record

Guidelines belowGuideline HGuideline E

What the Board reviewed

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

Why the Board ruled this way

The Board found no error in the Judge's findings and affirmed the adverse decision based on the evidence presented.

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
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; Guideline E DIGEST: Applicant contends the record contains no evidence to support the Judge’s statement that Applicant’s employer “presumably had a drug-free workplace policy.” We note the Drug- Free Workplace Act requires Federal contractors with a contact over $100,000 to establish certain drug-free workplace policies. Since Applicant works for a major defense contractor, we find no error in the Judge’s statement that her employer presumably has such policies. Adverse decision affirmed. CASENO: 16-00578.a1 DATE: 09/26/2017 DATE: September 26, 2017 In Re: -------------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-00578

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 July 30, 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 Substance Misuse) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On July 6, 2017, after considering the record, 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. 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 and Analysis Applicant is a 36-year-old employee of a Federal contractor. In 2003, she was granted a security clearance after disclosing in her security clearance application (SCA) that she used marijuana three times in 1999. In her SCA submitted in 2015, Applicant stated that her security clearance lapsed after ten years because her job did not require it and disclosed that she used marijuana three times during 2014 and 2015. This use of marijuana occurred in social setting with close friends. Her last use occurred about five months before she completed the SCA. In her Answer to the SOR, she stated that she had no desire to use marijuana in the future and that she avoided environments where marijuana is present. She denied having a continuing association with people who use illegal drugs and explained the person with whom she used marijuana no longer uses it. Applicant used marijuana in 2014-2015 when she was a mature, working adult in a responsible position. Although she did not have a security clearance during that period, she previously held one, was employed in the defense industry, and should have known marijuana was off limits. Her recent use of marijuana raises serious doubts about her reliability, trustworthiness, and good judgment. While she receives credit for self-reporting her marijuana use, she presented little in the way of mitigation. She has not provided sufficient evidence to establish that she has unquestionably ruled out future marijuana use.

DISCUSSION

Applicant contends the record contains no evidence to support the Judge’s statement that Applicant’s employer “presumably had a drug-free workplace policy.” Appeal Brief at 4-5, citing Decision at 5. We note the Drug-Free Workplace Act requires Federal contractors with a contact over $100,000 to establish certain drug-free workplace policies.1 Since Applicant works for a major defense contractor, we find no error in the Judge’s statement that her employer presumably has such policies. Applicant also argues that the Judge did not weigh and consider all relevant evidence. She cites to such matters as the amount of time that has passed since her last use of marijuana, her disassociation with drug-using individuals, and her honesty throughout the security clearance process. The Judge, however, made findings about those matters. Her arguments are neither sufficient to rebut the presumption that the Judge considered all of the evidence in the record nor enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or 1 See, 41 U.S. Code § 8101-8106. See also, the Federal Acquisition Regulation, 48 C.F.R § 52.223-6, Drug -Free Workplace. contrary to law. See, e.g., ISCR Case No. 14-03747 at 3 (App. Bd. Nov. 13, 2015). 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. Id. Additionally, the Judge complied with the requirements of the Directive in his whole-persons analysis by considering the totality of the evidence in reaching his decision. 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, 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: James F. Duffy James F. Duffy Administrative Judge Member, Appeal Board