KEYWORD: Guideline H; Guideline E
DIGEST: DOHA Judge are required to use the Adjudicative Guidelines in the Directive, not the
Adjudicative Desk Reference.  Given Applicant’s previous patterns of drug use, the Judge’s
conclusion that Applicant’s three year abstinence from marijuana was not sufficient to mitigate
the government’s security concerns is sustainable.  Adverse decision affirmed.
CASENO: 08-01583.a1
DATE: 12/04/2009
DATE: December 4, 2009
In Re:
-------
Applicant for Security Clearance
)
)
)
)
)
)
)
)
ISCR Case No. 08-01583
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Alfred S. Donau, III, Esq.
The Judge made formal findings in favor of Applicant under Guideline E. Those favorable findings are not at1
issue on appeal.
2
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On January 30, 2009, DOHA 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 September 18, 2009, after the hearing,
Administrative Judge Edward W. Loughran denied Applicant’s request for a security clearance.
Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raises the following issues on appeal: (1) whether the Judge’s characterization of
Applicant’s marijuana use as “extensive” is supported by the record evidence; (2) whether the
Judge’s analysis of the Guideline H mitigating conditions is erroneous; and (3) whether the Judge
misapplied the whole-person concept.  For the following reasons, the Board affirms the Judge’s
unfavorable decision.  1
The Judge made the following pertinent findings of fact: (a) Applicant was 55 years old at
the time of the hearing; (b) Applicant started smoking marijuana in college, and then did not smoke
marijuana for an extended period; (c) he smoked marijuana again during the period between about
1992 and 1993, when he did not have a clearance; (d) he did not smoke marijuana between 1993 and
May 2005; (e) Applicant smoked marijuana on 25 to 30 occasions between May 2005 and April
2006, using it every weekend or two during a month; (f) Applicant had a security clearance while
he was using marijuana in 2005 and 2006, and he was aware of his company’s anti-drug policy, as
well as the DoD’s policy against illegal drug use; (g) Applicant was stopped by his facility’s security
officers for a random vehicle inspection on May 1, 2006; (h) the facility officers found a small
amount of marijuana inside a wooden case; (i) Applicant was arrested for unlawful possession of
marijuana and possession of drug paraphernalia; (j) Applicant pled guilty to possession of drug
paraphernalia, entered a diversion program, completed the program, and the charges were dismissed;
(k) Applicant signed a “last chance” agreement with his employer on June 5, 2006; (l) Applicant
successfully completed an outpatient chemical dependency program from May 3, 2006 through June
21, 2006; (m) the discharge summary listed a diagnostic impression of cannabis dependence and a
favorable prognosis; (n) Applicant states that he will not use illegal drugs again and he has
disassociated himself from any drug-using associates and contacts; and (o) three witnesses attest to
Applicant’s job performance, reliability, honesty, trustworthiness, and good judgment.
The Judge reached the following conclusions: (i) there is no bright-line rule as to whether
conduct is recent, and Applicant has not used illegal drugs in more than three years; (ii) however,
his drug use was very extensive, occurred over a long period of time, and was interrupted by other
long periods of abstinence followed by additional drug use; (iii) Applicant returned to illegal drug
use when he was 50 years old and held a security clearance; (iv) he used the drug knowing it was
illegal, contrary to his company’s anti-drug policy, and counter to the DoD’s policy against illegal
3
drug use; (v) the Judge was unable to make a determination that Applicant’s drug use is completely
in his past; (vi) security concerns are still present despite the presence of some mitigation.
Applicant’s reliance on portions of the Adjudicative Desk Reference (ADF) is misplaced.
DOHA judges are required to decide cases by using the Adjudicative Guidelines, not the ADF.  The
ADF itself contains language indicating that it may not be cited as authority for denial or suspension
of access.  See, e.g.,  ISCR Case No. 03-04090 at 6 (App. Bd. Mar. 3, 2005).  Given that language,
Applicant cannot reasonably contend that the portions of the ADF cited by him constituted official
U.S. government policy that the Judge was required to follow.
Applicant asserts that Applicant’s drug use was not extensive.  His assertion fails to
demonstrate error on the part of the Judge.  The record demonstrates that Applicant went through
significant periods of marijuana use juxtaposed with significant periods of abstinence.  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. 06-17409 at 3 (App. Bd. Oct. 12, 2007).  Although the record is not clear as to how many times
Applicant used marijuana during his college years and during the period between 1992 and 1993,
these periods of usage, coupled with the 25-30 instances of use admitted to by Applicant during the
2005-2006 time frame, reasonably support the Judge’s characterization of Applicant’s drug use as
extensive.  The level of usage established by the evidence, in addition to a pattern of usage that
stretched, with breaks, over a 30-year period, undercuts Applicant’s characterization of his marijuana
use as an aberration.
Applicant’s statements concerning the Guideline H mitigating conditions and the whole-
person concept can be discussed together.  Applicant argues that proper application of Guideline H
mitigating conditions should have resulted in a decision in his favor.  Specifically, Applicant
maintains that the three-year passage of time since his last marijuana use and the evidence of
rehabilitation overcome the government’s security concerns.  He also emphasizes his successful
completion of a drug rehabilitation program and the maturity and responsible behavior he
demonstrated by immediately reporting the May 1, 2006 incident to his supervisor when arguing that
the Judge misapplied the whole-person concept.  A review of the record and the Judge’s decision
reveals that the Judge weighed the mitigating evidence offered by Applicant against the length,
seriousness, and pattern of the disqualifying conduct and considered the possible application of
relevant mitigating conditions and whole-person factors.  The Judge  reasonably explained why the
evidence Applicant presented in mitigation was insufficient to overcome the government’s security
concerns.  In doing so, the Judge emphasized the fact that Applicant’s position as an intelligent,
mature, and highly-regarded engineer made his choice to return to illegal drug use at the age of 50,
and while holding a security clearance, particularly disturbing.
The Board does not review a case de novo.  After reviewing the record, the Board concludes
that the Judge examined the relevant evidence and articulated a satisfactory explanation for his
decision, “including a ‘rational connection between the facts found and the choice made.’” Motor
Vehicle Mfs. Ass’n of the United States v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43
4
(1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).  Therefore,
the Judge’s ultimate unfavorable security clearance decision under Guideline H is sustainable.
Order
The decision of the Judge is AFFIRMED.
Signed: Jeffrey D. Billett         
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: Jean E. Smallin             
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: James E. Moody             
James E. Moody
Administrative Judge
Member, Appeal Board