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ISCR Case 16-02098.a1 — CASE

ISCR Case 16-02098.a1denied

Case Headnote

ISCR Case No. 16-02098.a1

Mar 31, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A 23-year-old defense contractor was denied a security clearance under Guideline E (Personal Conduct) and Guideline H (Drug Involvement) due to his past marijuana use. The applicant used marijuana from February 2014 to July 2015, which constituted a violation of both federal law and his employer's policy. Although he ceased use in December 2015, the judge determined that this period was insufficient to demonstrate rehabilitation.

The denial was based on several disqualifying conditions, including the fact that his marijuana use violated federal law and employer policy, and that his last use occurred after he completed his security clearance application. While mitigating conditions were considered, the judge ultimately concluded that more time without illegal drug use is necessary to establish rehabilitation.

The applicant's arguments were deemed insufficient to overturn the denial, as his conduct raised significant concerns regarding his judgment and reliability. Consequently, the security clearance was DENIED.

Conditions Referenced

Disqualifying

AG ¶ 25raisedDrug Involvement

Mitigating

AG ¶ 26rejectedRehabilitationThe judge found that the applicant had not demonstrated sufficient rehabilitation due to the recent nature of his drug use.
AG ¶ 23appliedPersonal Conduct

Key Rule Quoted

“An applicant’s use of illegal drugs after having completed a security clearance application raises questions about his or her judgment, reliability, and willingness to comply with laws, rules, and regulations.”
— ISCR Case No. 14-03450 at 3 (App. Bd. Sep. 11, 2015)

Procedural Posture

SOR issuedSep 1, 2016
Answer filed—
Hearing heldJan 25, 2017
Decision dateMar 31, 2017

Cite For

Denial of Clearance Due to Drug Involvement Under Guideline H
Insufficient Demonstration of Rehabilitation After Drug Use
Impact of Illegal Drug Use on Judgment and Reliability 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 involved a denial of a security clearance based on drug involvement and 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 applicant's drug use and its implications for national security.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMark Harvey — 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 decision was supported by substantial evidence and articulated a satisfactory explanation for the adverse decision regarding the applicant's drug use.

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: In his Security Clearance Application (SCA), Applicant stated that he had used marijuana from February 2014 until July 2015. Applicant’s arguments are not enough to rebut the presumption that the Judge considered all the record evidence. Adverse decision affirmed. CASENO: 16-02098.a1 DATE: 03/31/2017 DATE: March 31, 2017 In Re: -------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-02098

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 September 1, 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). Department Counsel requested a hearing. On January 25, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Mark Harvey 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 Twenty-three years old, Applicant has worked for his current employer, a Defense contractor, since October 2015. Applicant used marijuana 10 to 12 times from August 2014 until July 2015, as alleged in his SOR. In his Security Clearance Application (SCA), he stated that he had used marijuana from February 2014 until July 2015, a longer period than that alleged in the SOR. When he began his current job, he was aware of his employer’s prohibition against marijuana use. In December 2015, he purchased some marijuana and smoked it with a close friend. Applicant’s use of marijuana in December 2015 was not alleged in the SOR. Applicant was not aware that this was a crime, insofar as marijuana use is lawful in the state in which Applicant’s offense occurred. He and his friend ended their marijuana use in December 2015. Applicant did not want to disclose his marijuana use to his employer through fear of losing his job. He now understands that Federal law prohibits marijuana use, and he has promised not to do it again, with automatic revocation of his clearance should he re-offend. The Judge stated that he would consider Applicant’s use of marijuana from February 2014 to July 2014 and in December 2015 only for those purposes set forth in ISCR Case No. 03-20327 at 4 (October 26, 2006) (To assess credibility, to evaluate Applicant’s case for mitigation, to evaluate the extent to which Applicant has shown rehabilitation, to conduct a whole-person analysis, etc.) Applicant enjoys a good reputation for integrity, honesty, and his job performance. His manager recommends him for a clearance. The Judge’s Analysis The Judge noted evidence that Applicant has not used marijuana since December 2015. He concluded, however, that more time without any illegal drug use is necessary to show that Applicant’s security-significant conduct is behind him. He stated that each time Applicant used marijuana it was a violation of Federal law, as well as in contravention of his employer’s policy. The Judge noted that Applicant’s last use of marijuana occurred after he had completed his SCA, in which he answered “no” to a question asking if he intended to engage in marijuana use in the future.

DISCUSSION

Applicant cites to his testimony that he did not know that a state’s legalization of marijuana had no effect on Federal law to the contrary. See Tr. at 27. He states that he is not addicted to marijuana and argues that he has demonstrated mitigation. In support of his argument, Applicant cites to a Hearing Office case which he believes is similar to his and in which the applicant received a favorable decision. Applicant’s arguments are not enough to rebut the presumption that the Judge considered all of the evidence in the record. Neither are they 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. 15-02040 at 2 (App. Bd. Feb. 16, 2017). We have given due consideration to the case that Applicant has cited. However, it has significant factual differences from Applicant’s own. In any event, Hearing Office cases are not binding on other Hearing Office Judges or on the Appeal Board. See, e.g., ISCR Case No. 15-04096 at 3 (App. Bd. Nov. 22, 2016). The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on this record. An applicant’s use of illegal drugs after having completed a security clearance application raises 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). “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 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