KEYWORD: Guideline H
DIGEST: Given the record that was before the Judge his ultimate unfavorable decision is not
aritrari, capricious or contrary to law. Adverse decision affirmed.
CASENO: 06-09782.a1
DATE: 07/30/2007
DATE: July 30, 2007
In Re:
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SSN: --------
Applicant for Security Clearance
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ISCR Case No. 06-09782
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Scott A. Ashelman, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On July 11, 2006, DOHA 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 hearing.  On December 29, 2006, Administrative Judge Philip S. Howe denied
Applicant’s request for a security clearance.  Applicant submitted a timely appeal pursuant to
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Directive ¶¶  E3.1.28 and E3.1.30.
Applicant raised the following issue on appeal: whether the Judge’s unfavorable security
clearance decision under Guideline H is arbitrary, capricious, or contrary to law; whether the Judge
erred in his interpretation and application of 10 U.S.C. §986(c)(2).
(1) Applicant’s counsel contends that the Judge erred in concluding that the security concerns
raised under Guideline H had not been mitigated.  In support of that contention, he argues that the
Judge overstated the seriousness of the Applicant’s disqualifying conduct—the illegal use of
marijuana and cocaine over a 17 year period—and gave insufficient weight to the fact that Applicant
had acknowledged his drug problem, had been drug free for almost a year, had promised to abstain
from using illegal drugs in the future, and was hard-working and responsible.  Applicant’s arguments
do not demonstrate that the Judge erred.
“[T]here is a strong presumption against granting a security clearance.” Dorfmont v. Brown,
913 F. 2d 1399, 1401 (9  Cir. 1990), cert. denied, 499 U.S. 905 (1991).  Once the governmentth
presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation.
Directive ¶ E3.1.15.  The application of disqualifying and mitigating conditions does not turn simply
on a finding that one or more of them applies to the particular facts of a case.  Rather, their
application requires the exercise of sound discretion in light of the record evidence as a whole.  See,
e.g., ISCR Case No. 01-14740 at 7 (App. Bd. Jan.15, 2003).  Thus, 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.  An applicant’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.
In his decision, the Judge weighed the mitigating evidence offered by Applicant against the
length and seriousness of the disqualifying conduct and considered the possible application of
relevant mitigating conditions and whole-person factors.  He reasonably explained why the evidence
which the Applicant had presented in mitigation under Guideline H was insufficient to overcome the
government’s security concerns.  The Board does not review a case de novo.  Given the record that
was before him, the Judge’s ultimate unfavorable clearance decision under Guideline H is not
arbitrary, capricious, or contrary to law.
(2) Applicant’s counsel also contends that the Judge erred in his interpretation and
application of 10 U.S.C. §986(c)(2), and therefore in his adverse finding with respect to SOR
paragraph 1.d.  In support of that contention, he argues that there is no record evidence that
Applicant has used illegal drugs since January of 2006, so there is no evidence that Applicant is
currently an unlawful user of, or is addicted to, a controlled substance, within the meaning of that
statute.  Although Applicant’s argument in this regard may have merit (See ISCR Case No. 03-25009
at 3-5 (App. Bd. June 28, 2005)), the Board need not resolve the issue because, as noted above, the
Judge’s adverse clearance decision is otherwise sustainable.
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Order
The decision of the Judge denying Applicant a security clearance is AFFIRMED.
Signed: Michael Y. Ra’anan      
Michael Y. Ra’anan
Administrative Judge
Chairman, Appeal Board
Signed: Michael D. Hipple         
Michael D. Hipple
Administrative Judge
Member, Appeal Board
Signed: William S. Fields            
William S. Fields
Administrative Judge
Member, Appeal Board