KEYWORD: Guideline H; Guideline J; Guideline E; Guideline F
DIGEST: In 2006, Applicant used marijuana.  At the time he was an armed special agent on
protection assignment for a high-ranking federal official.  Also, Applicant incurred $20,000 in
personal charges on a government cell phone.  Adverse decision affirmed
CASENO: 08-07988.a1
DATE: 12/04/2009
DATE: December 4, 2009
In Re:
----
Applicant for Security Clearance
)
)
)
)
)
)
)
)
ISCR Case No. 08-07988
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Braden M. Murphy, Esq., Department Counsel
FOR APPLICANT
Charles Tucker, Jr., Esq.
2
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On April 23, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of
the basis for that decision—security concerns raised under Guideline H (Drug Involvement),
Guideline J (Criminal Conduct), Guideline E (Personal Conduct), and Guideline F (Financial
Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).
Applicant requested a hearing.  On September 9, 2009, after the hearing, Administrative Judge Joan
Caton Anthony denied Applicant’s request for a security clearance.  Applicant appealed pursuant to
the Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raises the following issue on appeal: whether the Judge’s decision was arbitrary,
capricious or contrary to law.  For the following reasons, the Board affirms the Judge’s unfavorable
decision. 
The Judge found, inter alia, that in March 2006, Applicant used marijuana as an off-duty
federal law enforcement officer who held a security clearance.  She found that, at the time of the
incident, Applicant was assigned as an armed special agent on the protection detail of a high-ranking
federal official and had held a security clearance for about four years.  The Judge also found that
prior to his position as a federal law enforcement officer, Applicant had worked as a special
investigator who conducted background investigations for security clearance applicants.  As such,
he was thoroughly familiar with the security concerns relating to illegal drug use because he was
required to inquire about and investigate illegal drug use by individuals who sought access to
classified information.  The Judge also found that, at the time of the incident, Applicant took evasive
action to hide the marijuana from the police and to deter their investigation.  The Judge also found
that in 2005, Applicant incurred over $20,000 in personal charges on a government cell phone while
working overseas.  
The Judge concluded that although Applicant’s 2006 drug use was not recent and occurred
only once, Applicant’s status as a security clearance holder and a special agent who was thoroughly
familiar with government security concerns related to illegal drug use and his status as a special
agent authorized to carry a firearm and charged with protecting a high government official, raised
serious questions about his judgment, trustworthiness, and reliability.  She also concluded that
despite Applicant’s stated remorse and the negative impact the 2006 incident had on his career,
insufficient time had passed to demonstrate a positive and permanent change in behavior.  The Judge
also concluded that when Applicant’s marijuana use and failure to follow his employer’s instructions
about the use of his government cell phone is viewed from a whole person perspective,  unmitigated
questions remain about his judgment, reliability, and trustworthiness.  In doing so, the Judge asserted
that because of his status as a federal law enforcement officer with a clearance who took evasive
action on the night of the marijuana incident in an attempt to protect himself, Applicant’s marijuana
use was not simply an isolated use of an illegal drug.  
Applicant argues that his single instance of marijuana use sufficiently invoked pertinent
considerations under Guideline H so as to mitigate any security concerns raised by a single
aberrational event.  He argues that his gross deviation from his customary behavior is not indicative
3
of his judgment, reliability or trustworthiness, nor is it likely to recur.  Applicant’s arguments in this
regard do not establish error on the part of the Judge.
             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.  See,
e.g., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007).  In this case, the Judge noted
Applicant’s favorable characteristics, professional accomplishments and responsible behavior since
the 2006 drug incident, but indicated why these factors were insufficient to overcome the
government’s security concerns given his status as a federal law enforcement officer and a former
background investigator and his actions in attempting to cover up his illegal activity.  The Judge’s
conclusions in this regard are sustainable on this record.
Applicant also argues that the Judge’s decision is erroneous in part because it analyzes his
drug use under two different guidelines and reaches opposite conclusions.  It is permitted to do so.
See, e.g., ISCR Case No. 04-09251 at 3 (App. Bd. Mar. 27, 2009).  In this case, however, the Judge’s
reasoning is at least somewhat problematic in that she used contradictory language.  In concluding
for Applicant under Guideline J the Judge applied ¶32(a), “so much time has elapsed since the
criminal behavior happened, or it happened under such unusual circumstances that it is unlikely to
recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment.”
Whereas in concluding against Applicant under Guideline H for the same conduct the Judge wrote,
“This conduct casts doubt on his reliability, trustworthiness, and good judgment.”  Similarly, she
applied Guideline J, ¶ 32 (d), “there is evidence of successful rehabilitation; including but not limited
to the passage of time without recurrence of criminal activity, remorse or restitution, job training or
higher education, good employment record, or constructive community involvement;” in Applicant’s
favor, but wrote under Guideline H, “Even though he expressed remorse for his behavior and the
negative impact it had on his career, he also suggested that his arrest was unwarranted.  I conclude
that insufficient time has passed to demonstrate a positive and permanent change in behavior.”
Applicant is correct that there appears to be a contradiction and such contradiction is error.
However, the Board concludes that the error is harmless, as the Judge’s adverse conclusions
regarding Applicant’s drug use under Guideline H are sustainable and provide an adequate basis for
her ultimate adverse security clearance decision.
The Board does not review a case de novo.  The favorable evidence cited by Applicant is not
sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law.  See, e.g.,
ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007).  After reviewing the record, the Board
concludes that the Judge examined the relevant data and articulated a satisfactory explanation for
her 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).  Therefore, the
Judge’s ultimate unfavorable security clearance decision is sustainable.
4
Order
The decision of the Judge denying Applicant a security clearance is AFFIRMED.
Signed: Michael Y. Ra’anan          
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: Jeffrey D. Billett                
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: William S. Fields                  
William S. Fields
Administrative Judge
Member, Appeal Board