CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 16-02005.a1 — CASE

ISCR Case 16-02005.a1denied

Case Headnote

ISCR Case No. 16-02005.a1

Jun 2, 2017· Hon. James E. Moody· appeal

Summary

A 37-year-old government contractor was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). Disqualifying conditions included the applicant's cocaine use in 2014 and subsequent peyote use in 2015. The peyote use occurred after the submission of a security clearance application, which was noted as an indicator of poor judgment.

While mitigating conditions were presented, the appeal board affirmed the denial. A key factor in the decision was that only two years had passed since the applicant's last use of a controlled substance, leading to a determination that future use was likely.

The board emphasized the necessity of compliance with laws and regulations in security clearance determinations. Ultimately, the applicant's history of drug involvement and related personal conduct issues resulted in the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 25raisedDrug Involvement
AG ¶ 14raisedPersonal Conduct

Mitigating

AG ¶ 26rejectedDrug InvolvementThe presence of some mitigating evidence does not alone compel a favorable decision.
AG ¶ 15rejectedPersonal ConductThe applicant's favorable psychological evaluation and disassociation from drug users did not outweigh the adverse findings.

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 2, 2016
Answer filed—
Hearing heldMar 8, 2017
Decision dateJun 2, 2017

Cite For

Affirmation of Denial Based on Drug Involvement Under Guideline H
Importance of Compliance with Laws and Regulations in Security Clearance Determinations
Weighing of Mitigating Evidence Against Adverse Findings in Security Clearance Cases

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 from a denial of a security clearance based on drug involvement and personal conduct. The applicant argued that the Judge erred in her findings and that the decision was arbitrary. The Board affirmed the Judge's decision, finding no harmful error and that the decision was supported by substantial evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowJennifer I. Goldstein — denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant contended that the Judge did not consider record evidence.
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 findings were based on substantial evidence and reasonable inferences drawn from the evidence. The Judge's decision was not 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

William S. Fields
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: From our review of the record, we conclude the Judge’s material findings about Applicant ‘s 2014 cocaine use are based upon substantial evidence or constitute reasonable inferences or conclusions that could be drawn from the evidence. Adverse decision affirmed. CASENO: 16-02005.a1 DATE: 06/02/2017 DATE: June 2, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-02005

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 2, 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 March 8, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Jennifer I. Goldstein 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 erred in her findings of fact and 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 and Analysis

Applicant is a 37-year-old employee of a Government contractor. He used cocaine infrequently from 1996 to 2014, helped a friend harvest marijuana in 2014, and used peyote in 2015 after submitting a security clearance application. At the time of his 2014 cocaine use, he was aware illegal drug use was in violation of his employer’s polices, but he was between contracts at that time. He testified that he had no intent to use illegal substances again and signed a statement of intent to that effect. He is subject to random urinalysis tests. He no longer associates with known drug users. He provided a psychological evaluation. A substance abuse subtle screening inventory reflected he has “a low probability of having a substance dependence disorder.” Decision at 3. His friends and coworkers hold him in high regard. Only two years passed since Applicant’s use of a controlled substance. One month before his use of peyote, he explicitly stated, “I never intend on using a controlled substance again” on his security clearance application. The Judge could not find that future use is unlikely to occur without the passage of more time.

DISCUSSION

Applicant contends that the Judge erred in her finding “regarding breaking employment policies, which could not have happened as [Applicant] was unemployed at the time of his drug use.” Appeal Brief at 12. Applicant’s security clearance application reflects that he was working for a company at the time of his 2014 cocaine use. At the hearing, Applicant testified about his employer’s drug policy, but indicated that his employment contract had ended when he used cocaine in 2014. Tr. at 37-38. Of note, the Judge did not find that Applicant violated the employer’s drug policy, but that he was aware of the policy and was in-between contracts when that cocaine use occurred. From our review of the record, we conclude the Judge’s material findings about Applicant 2014 cocaine use are based upon substantial evidence or constitute reasonable inferences or conclusions that could be drawn from the evidence. See, e.g., ISCR Case No. 12-03420 at 3 (App. Bd. Jul. 25, 2014). Applicant argues that the Judge did not consider record evidence. However, he failed to rebut the presumption that the Judge considered all the evidence in the record. See, e.g., ISCR Case No. 14-06093 at 3 (App. Bd. Dec. 4, 2015). In his arguments, Applicant cites to, among other matters, the period that has elapsed since his last illegal drug use, his disassociation with known drug users, his favorable psychological evaluation, and his submission of a signed statement of intent to never use illegal drugs again. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. A party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15-00650 at 2 (App. Bd. Jun. 27, 2016). We give due consideration to the Hearing Office cases that Applicant cited, but they are not binding precedent on the Appeal Board, distinguishable from the present case, and of little persuasive value. See, e.g., ISCR Case No. 14-03747 at 3 (App. Bd. Nov. 13, 2015). In this regard, we note an applicant’s use of illegal drugs after having completed a security clearance application raises substantial questions about his or her judgment, reliability, and willingness to comply with laws, rules, and regulations. See, e.g., ISCR Case No. 14-03450 at 3 (App. Bd. Sep. 11, 2015). Additionally, the Judge complied with the requirements of the Directive in her whole-person analysis by considering the totality of the evidence in reaching her decision. Applicant has failed to identify any harmful error. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on the 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: William S. Fields William S. Fields Administrative Judge Member, 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