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ISCR Case 16-01941.a1 — CASE

ISCR Case 16-01941.a1denied

Case Headnote

ISCR Case No. 16-01941.a1

Aug 9, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A 59-year-old defense industry employee was denied a security clearance under Guideline H (Drug Involvement) due to recent marijuana use while already holding a clearance. The Appeal Board cited two disqualifying conditions: AG ¶ 25(a) regarding recent drug involvement, and AG ¶ 25(c) concerning drug use that indicates poor judgment.

While the applicant completed a drug education program and demonstrated some rehabilitation efforts, leading to the application of mitigating conditions AG ¶ 26(a) and AG ¶ 26(b), these were deemed insufficient. The Board found that the applicant's marijuana use was recent and occurred while holding a security clearance.

Ultimately, the denial was upheld because there was insufficient evidence to demonstrate that the applicant's drug use would not recur. Additionally, the applicant was found to have exercised poor judgment by self-medicating with marijuana without a prescription.

Conditions Referenced

Disqualifying

AG ¶ 25(a)raisedDrug Involvement
AG ¶ 25(c)raisedRecent Use

Mitigating

AG ¶ 26(a)rejectedAbstinenceThe applicant's arguments regarding rehabilitation and abstinence were insufficient to overcome the presumption against him.
AG ¶ 26(b)rejectedRehabilitationThe evidence of rehabilitation was not enough to demonstrate that the applicant's drug use would not recur.

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 issuedSep 19, 2016
Answer filed—
Hearing heldMay 19, 2017Decision made by Administrative Judge Braden M. Murphy.
Decision dateAug 9, 2017Appeal Board affirmed the denial.

Cite For

Recent Marijuana Use While Holding a Security Clearance Under Guideline H
Insufficient Evidence of Rehabilitation and Abstinence
Poor Judgment in Self-medicating with Marijuana

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 due to 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 error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationAttorney

Judge belowBraden M. Murphy — denied the clearance

Decided onthe written record

Guidelines belowGuideline H

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 no harmful error in the Judge's decision, affirming that the Judge's whole-person analysis was appropriate and supported by substantial evidence.

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 DIGEST: We give due consideration to the Hearing Office cases that Applicant has cited, but they are neither binding precedent on the Appeal Board nor sufficient to undermine the Judge’s decision. Additionally, we find no basis for concluding the Judge erred in his whole-person analysis. Adverse decision affirmed. CASENO: 16-01941.a1 DATE: 08/09/2017 DATE: August 9, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-01941

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 September 19, 2016, 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 May 19, 2017, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Braden M. Murphy 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 is a 59-year-old employee in the defense industry. He began experiencing back pain after a car accident. He received treatment and medication for that condition since at least 2012. He submitted a security clearance application in 2014. Shortly after his security clearance was granted in 2015, he began self-medicating with marijuana to relieve his back pain and to sleep. He used marijuana on a daily basis for about two months. There is no indication that he received a prescription for his marijuana use. He purchased the marijuana from an acquaintance with whom he has had no contact since March 2016. In June 2015, Applicant injured his hand at work. Afterwards, he took a drug test, which tested positive for marijuana. He was suspended without pay for six weeks. He did not disclose his marijuana use before the drug test. He signed a rehabilitation agreement with his employer and “attended substance abuse counseling under threat of being fired.” Decision at 3. An employee assistance program (EAP) counselor determined Applicant abused marijuana but did not have a substance abuse disorder. He was referred to a drug education program. He successfully completed the program and was subject to random drug testing for two years. The EAP counselor believes that Applicant has learned what he needs to refrain from future illicit substance abuse. The Judge’s Analysis The Appeal Board has declined to adopt a “bright-line” as to recency. Decision at 6. Applicant’s marijuana use is fairly recent, was not infrequent, and occurred while holding a security clearance. His daily use of marijuana continued until he tested positive for marijuana use after a workplace accident. He exercised poor judgment. Insufficient evidence was presented to conclude that his drug use occurred under circumstances that are unlikely to recur.

DISCUSSION

Applicant argues that he presented proof of rehabilitation, abstinence, and disassociation with drug-using individuals. He also repeatedly cites to the favorable letter from the EAP counselor. His arguments, however, are neither enough to rebut the presumption that the Judge considered all of the record evidence nor 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. 15-01717 at 4 (App. Bd. Jul. 3, 2017). We give due consideration to the Hearing Office cases that Applicant has cited, but they are neither binding precedent on the Appeal Board nor sufficient to undermine the Judge’s decision. Id. Additionally, we find no basis for concluding the Judge erred in his whole-person analysis. 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