KEYWORD: Guideline H
DIGEST: The Judge’s favorable decision does not address Applicant’s June 2007 statement that
he intends to continue using marijuana.  The Judge also overlooked evidence of Applicant’s
continued use after drug testing.  Favorable decision reversed.
CASENO: 07-10804.a1
DATE: 06/19/2008
DATE: June 19, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 07-10804
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Julie R. Edmunds, Esq. Department Counsel
FOR APPLICANT
Pro Se
2
 The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On October 9, 2007, DOHA issued a statement of reasons 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 February 4, 2008, after the hearing, Administrative Judge Darlene Lokey-Anderson granted
Applicant’s request for a security clearance.  Department Counsel timely appealed pursuant to the
Directive ¶¶ E3.1.28 and E3.1.30.
Department Counsel raises the following issue on appeal:  whether the Judge’s application
of Drug Involvement Mitigating Condition 26(a) and her whole-person analysis are arbitrary,
capricious, and unsupported by the record evidence.  Finding error, we reverse the Judge’s decision.
Whether the Record Supports the Judge’s Factual Findings
A.  Facts
The Judge made the following relevant factual findings: Applicant is a 38-year old chemical
engineer.  He married in 1999 and has a 5-year old daughter and another child on the way.  Applicant
used marijuana several times a year at social gatherings during his college years, from 1988 to 1994.
Between 1994 and 1999, he is not sure if he used marijuana, but if he did so, it was once or twice
a year.  From 1999 until his last use in 2005 or 2006, he used it once every other year—at least seven
times.  Applicant admitted his marijuana use when he completed a security clearance application in
January 2007.  When interviewed by an investigator in June 2007, Applicant indicated that he
intended to continue using marijuana in the future.  However, in his answer to the SOR dated
October 30, 2007, Applicant denied that he intends to use marijuana in the future. 
B.  Discussion 
The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they
are supported by substantial evidence–“such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion in light of all the contrary evidence in the same record.”
Directive  ¶ E3.1.32.1.  “This is something less than the weight of the evidence, and the possibility
of drawing two inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.”  Consolo v. Federal Maritime
Comm’n, 383 U.S. 607, 620-21 (1966).  In evaluating the Judge’s findings, we are required to give
deference to the Judge’s credibility determinations.  Directive ¶ E3.1.32.1. 
Department Counsel has not challenged the above factual findings.  Therefore, they are not
at issue in this appeal.  In arguing the issues on appeal, Department Counsel contends that the
Judge’s decision does not take into account significant contrary record evidence.  The Board will
address this contention below. 
Whether the Record Supports the Judge’s Ultimate Conclusions
“[T]he behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to1
recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgement;” Directive ¶
E2.26(a).
3
 A Judge is required to “examine the relevant data and articulate a satisfactory explanation
for” the decision, “including a ‘rational connection between the facts found and the choice made.’”
Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).  “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).  The Appeal
Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary,
capricious, or contrary to law.  Directive ¶¶ E3.1.32.3 and E3.1.33.3.  
Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong
presumption against the grant or maintenance of a security clearance.  See Dorfmont v. Brown, 913
F. 2d 1399, 1401 (9  Cir. 1990), cert. denied, 499 U.S. 905 (1991).  After the government presentsth
evidence raising security concerns, the burden shifts to the applicant to establish any appropriate
mitigating conditions.  See Directive ¶ E3.1.15.  “The application of disqualifying and mitigating
conditions and whole person factors does not turn simply on a finding that one or more of them apply
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. 05-03635 at 3 (App. Bd. Dec.
20, 2006).
In deciding whether the Judge's rulings or conclusions are arbitrary or capricious, the Board
will review the Judge's decision to determine whether:  it does not examine relevant evidence; it fails
to articulate a satisfactory explanation for its conclusions, including a rational connection between
the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of
judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision
that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere
difference of opinion.  In deciding whether the Judge's rulings or conclusions are contrary to law,
the Board will consider whether they are contrary to provisions of Executive Order 10865, the
Directive, or other applicable federal law.  See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2,
2006).
The Judge found that the government had met its burden under Guideline H and that the
“totality of this evidence indicates poor judgment, unreliability and untrustworthiness on the part of
the Applicant.”  Decision at 5.  However, the Judge then applied Mitigating Condition 26(a),  stating1
that Applicant had not used marijuana in over two years and that he “credibly testified that he has
no intentions of ever using any illegal drug in the future.”  Id.  
As Department Counsel points out, the Judge overlooked significant evidence in making that
statement and in mitigating Applicant’s conduct.  As discussed above, Applicant indicated his
intention to continue to use marijuana in his June 2007 interview with an investigator.  In August
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2007, DOHA sent Applicant a copy of the statement he made to the investigator.  He was asked to
authenticate it and was given an opportunity to add additional information.  In his response dated
September 5, 2007, he clarified one aspect of the statement, but did not address his statement that
he would continue to use marijuana in the future.  Then in his answer to the SOR in October,
Applicant denied that he intended to continue using it.  A major part of Applicant’s testimony at the
hearing revolved around the difference between Applicant’s statement in June and his statement to
the contrary in October.  The Judge does not refer to that conflict in her decision, merely stating that
Applicant “credibly testified” about his intentions not to use drugs, as set forth above.  The Board
has held that while a Judge’s credibility determination is entitled to deference, such an assessment
does not relieve the Judge of the obligation to decide how much weight can properly be given to an
applicant’s testimony in light of the record evidence as a whole.  See, e.g., ISCR Case No. 03-02486
at 7 (App. Bd. Aug. 31, 2004), citing Anderson v. City of Bessemer, 470 U.S. 564, 575 (1985).  A
Judge’s decision is not measured by a standard of perfection, but the credibility of Applicant’s
testimony of changed intent toward the future use of drugs is a critical aspect of the case.  Given the
self-serving nature of Applicant’s statements of future intent starting in October 2007, as well as
record evidence of Applicant’s prior use while serving in other positions subject to drug testing, it
is not reasonable for the Judge to merely accept the credibility of statements of future intent without
a clear explanation of why she  found it credible. 
The Judge also overlooked record evidence regarding Applicant’s drug use following drug
tests in the past.  Applicant testified that he passed an initial drug test with his current employer and
has not used marijuana since.  However, he also stated that all the jobs he held in the past required
drug tests, and he continued to use marijuana after passing initial drug tests while holding those jobs.
Transcript at 28.  In another case involving intent to use drugs in the future, the Board stated:  “As
a matter of common sense, one would expect that a person who has taken a drug test as a condition
of employment would understand the importance of future abstention.”  ISCR Case No. 06-18270
at 3 (App. Bd. Nov. 7, 2007).  Here again, the Judge relied on Applicant’s current statement that he
no longer intends to use marijuana and overlooked significant record evidence to the contrary. 
 
Department Counsel correctly points out the Judge also overlooked significant record
evidence in  her whole-person analysis.  The Judge concluded that Applicant has matured in the two
years since he last used marijuana, that he now has family responsibilities, and will do nothing to
jeopardize his career.  However, the record indicates that Applicant continued to use marijuana after
his marriage in 1999 and the birth of his first child, who is now five years old.  
Viewed in light of the record as a whole, the Judge’s favorable decision is not sustainable.
5
Order
The Judge’s favorable security clearance decision is REVERSED.
Signed: Michael D. Hipple     
Michael D. Hipple
Administrative Judge
Member, Appeal Board
Signed: Jean E. Smallin         
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: William S. Fields     
William S. Fields
Administrative Judge
Member, Appeal Board