KEYWORD: Guideline H; Guideline E
DIGEST: Applicant failed to mitigate security concerns arising from his prior drug use and his
omissions on the security clearance application.  The Judge’s decision not to admit a document
written in a language other than English was not arbitrary, capricious, or contrary to law. 
Hearing office decisions, even by the same Judge, are not binding precedent.  Adverse decision
affirmed.
CASENO: 08-04604.a1
DATE: 02/17/2010
DATE: February 17, 2010
In Re:
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Applicant for Security Clearance
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ISCR Case No. 08-04604
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro Se
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On April 9, 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 November 30, 2009, after the hearing,
10 U.S.C. § 815.1
Administrative Judge Marc E. Curry denied Applicant’s request for a security clearance.  Applicant
appealed pursuant to Directive ¶¶  E3.1.28 and E3.1.30.
Applicant raised the following issues on appeal: whether the Judge erred in an evidentiary
ruling; whether certain of the Judge’s findings of fact were supported by substantial record evidence;
whether the Judge mis-weighed the record evidence; whether the Judge erred in his application of
the pertinent mitigating conditions; and whether the Judge’s whole-person analysis was erroneous.
Finding no error, we affirm.
The Judge made the following pertinent findings of fact: Applicant is a Government
contractor, working in the telecommunications field.  He previously served on active duty with the
Army from 1979 to 1986.  As a contractor employee he has deployed to combat zones in support of
U.S. military objectives.
He has used marijuana and hashish “intermittently” over a period of 30 years.  He began
smoking marijuana in high school.  He smoked hashish in 1982 and 1985, while in the Army.  Also
in 1985, he was arrested by police in a foreign country for purchasing hashish.  Applicant attempted
to flee, but he was apprehended.  He received punishment under Article 15, UCMJ,  for resisting1
arrest and wrongful possession of hashish.  He was barred from reenlisting in the Army.  When
subsequently asked, during a security clearance interview, if he intended to use illegal drugs in the
future, Applicant replied “not only no, but hell no.”  Decision at 3. 
In 1992 Applicant used hashish more than once.  In a 2000 security clearance interview he
disclosed the hashish use but stated that he had no intention of using illegal drugs in the future.  In
March 2004 Applicant found marijuana in the apartment of his recently deceased brother.  He
smoked some of it.  The following September, while traveling in Europe, Applicant purchased
hashish in a country in which the sale was legal.  He attempted to enter another country, in which
the sale and possession of hashish were illegal.  He was arrested at the border and charged with
possession of hashish.  He subsequently paid a fine.
On a 1986 security clearance application (SCA) Applicant failed to disclose his prior hashish
use and his 1985 arrest for purchasing the drug.  On a 2006 SCA he failed to disclose his drug related
arrests and his 2004 episode of drug use.  He omitted this information from the SCAs because of
concerns over his job.  
Applicant enjoys an excellent reputation for his work ethic, his leadership qualities, and his
meticulous handling of classified information.  
Applicant contends that the Judge erred in failing to admit into evidence the results of a test
of his urine performed by a civilian laboratory, which was negative for illegal drugs.  The record
demonstrates that the Judge denied this document because it was written in a foreign language.
Decision at 2.  However, he did admit the result of a later negative test by the same laboratory, which
For example, Applicant challenges the Judge’s finding that he had responded “not no, but hell no” to a question2
about his intention for future drug use.  Applicant demonstrates that this response was actually to a question by the
investigator regarding the 1985 arrest for purchase of hashish.  The question was “If you had to do it over again, would
you?”  Government Exhibit 6, Applicant Statement, September 11, 1987.  Therefore, the Judge’s characterization of
Applicant’s response is error.  However, this error is de minimis, because, in the same exhibit, Applicant unequivocally
stated that he would not use illegal drugs in the future, a vow he more than once failed to uphold.  Accordingly, the Judge
did not err in evaluating Applicant’s most recent promise not to use drugs in light of his prior similar broken promises.
 
had been translated into English.  Under the circumstances, there is no error in the Judge’s ruling.
See ISCR Case No. 00-0433 at 2 (App. Bd. Sep. 6, 2001) (The Board will overturn a Judge’s
evidentiary rulings if they are arbitrary, capricious, or contrary to law).  
 Applicant challenges several of the Judge’s findings of fact.  After examining the record,
however, we conclude that the Judge’s material findings of security concern are based upon
substantial record evidence.  Even if the findings contain errors, they are harmless.   See ISCR Case2
No. 01-23362 (App. Bd. Jun. 5, 2006); ISCR Case No. 03-09915 (App. Bd. Dec. 16, 2004); ISCR
Case No. 01-11192 (App. Bd. Aug. 26, 2002).  Applicant cites to other Hearing Office cases by the
same Judge, in which, he contends, the Judge granted clearances to applicants with similar
circumstances.  The Board gives due consideration to these cases.  However, each case “must be
decided upon its own merits.”  Directive ¶ E2.2.3.  Hearing Office decisions, even by the same
Judge, do not serve as binding precedent.  See ISCR Case No. 06-24121 at 2 (App. Bd. Feb. 5,
2008).  
We have examined the Judge’s analysis of the security concerns raised in this case.  We
conclude that the Judge’s treatment of the pertinent mitigating conditions is reasonable.
Furthermore, we conclude that the Judge’s whole-person analysis complied with the requirements
of Directive ¶ E2.2.1, in that the Judge considered the totality of Applicant’s conduct in reaching his
decision.  See ISCR Case No. 05-03948 at 3-4 (App. Bd. May 21, 2007); ISCR Case No. 04-09959
at 6 (App. Bd. May 19, 2006).  Therefore, we conclude that the Judge did not conduct a piecemeal
analysis, as Applicant contends on appeal.  
After reviewing the record, we conclude that the Judge examined the relevant data and
articulated 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 Judge’s adverse decision is sustainable on this record.   “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). 
Order
The Judge’s adverse security clearance decision is AFFIRMED.
Signed: Jeffrey D. Billett                                           
           Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: William S. Fields             
William S. Fields
Administrative Judge
Member, Appeal Board
Signed: James E. Moody              
James E. Moody
Administrative Judge
Member, Appeal Board