KEYWORD: Guideline H; Guideline E
DIGEST: Nothing would lead a dis-interested person reasonably to question the Judge’s fairness
and impartiality.  Adverse decision affirmed
CASENO: 08-06605.a1
DATE: 02/04/2010
DATE: February 4, 2010
In Re:
-----
 
Applicant for Security Clearance
)
)
)
)
)
)
)
)
ISCR Case No. 08-06605
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Jeff A. Nagel, Esq., Department Counsel
FOR APPLICANT
Erick M. Ferran, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On October 14, 2008, DOHA issued a statement of reasons (SOR) advising Applicant
2
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).  The SOR was later amended to include allegations under Guideline J
(Criminal Conduct).  Applicant requested a hearing.  On September 18, 2009, after the hearing,
Administrative Judge Martin H. Mogul denied Applicant’s request for a security clearance.
Applicant appealed pursuant to Directive ¶¶  E3.1.28 and E3.1.30.
Applicant raises the following issue on appeal: whether the Judge’s decision is arbitrary,
capricious, or contrary to law.
The Judge made the following relevant findings of fact: Applicant served in the Marine
Corps for six years before being honorably discharged due to a service-connected injury in 2006.
Military records indicate that Applicant tested positive for illegal drugs in September 2005 (ecstacy)
and February 2006 (marijuana).  Two Marine sergeants testified regarding Marine Corps drug testing
procedures, and one of them testified that he was present when the tests were administered to
Applicant.  Applicant testified that he was unaware of those positive test results.  Applicant also
testified that he has taken two drug tests in the five years that he has been with his current employer,
a Defense contractor, and to his knowledge passed those drug tests.       
 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 rebut or mitigate those
concerns.  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
3
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).
Applicant alleges bias on the part of the Judge.  In particular, Applicant points to comments
the Judge made expressing skepticism about Applicant’s testimony as to his abilities in physical
fitness tests.  There is a rebuttable presumption that a Judge acts in a fair and impartial manner, and
a party seeking to rebut that presumption has a very heavy burden of persuasion.  See, e.g.,ISCR
Case No. 02-15003 at 3 (App. Bd. Mar 17, 2005).  When reviewing claims of bias or prejudice, the
standard is not whether the appealing party believes the Judge was biased or prejudiced, but rather
whether there is any indication in the record of the proceedings below (including the Judge’s
decision) that would lead a disinterested person to reasonably question the Judge’s fairness and
impartiality.  See, e.g., ISCR Case No. 02-33169 at 5 (App. Bd. Sep. 23, 2004).  A statement in
which the Judge questions an applicant’s credibility is not by itself indicative of bias.  Nothing in
the record of the proceedings below indicates anything that would lead a disinterested person
reasonably to question the Judge’s  fairness and impartiality in this case.
Applicant questions the Judge’s credibility determinations.  A Judge’s credibility
determinations are entitled to deference on appeal.  See Directive ¶ E3.1.32.1.  At the hearing, the
Judge had the opportunity to personally observe Applicant’s demeanor and that of the other
witnesses when they testified and to form impressions as to their credibility.  Applicant’s
disagreement with the Judge’s negative assessment of Applicant’s credibility and his positive
assessment of the credibility of other witnesses is not sufficient to meet his burden of persuasion.
Applicant questions whether a government witness qualified to testify as an expert witness
regarding the Marine Corps’ drug testing procedures and whether those procedures were followed
in Applicant’s case. Although the subject was not explicitly discussed at the hearing, the Board will
assume for the purposes of this appeal that Applicant was testifying as an expert.  At the time the
witness testified, Applicant did not challenge the witness’s expertise.  In cross-examining the
witness, Applicant asked questions consistent with acceptance of the witness’s knowledge of the
procedures used in drug testing.  Applicant did object on other grounds which are not raised on
appeal.  The Board concludes that Applicant waived any objection based on the witness’s expertise.
Even if the issue had not been waived, we conclude that the witness did not testify as to matters
outside his competence.  
Applicant contends that the government did not meet its burden of production with regard
to the drug tests and did not demonstrate a nexus between alleged behavior and a legitimate security
concern.  The record demonstrates that on two separate occasions Applicant tested positive for illegal
drugs, in one instance marijuana and in the other ecstacy.  Applicant’s urine was, on both occasions,
subjected to an initial screening test.  The positive results were then confirmed by gas
chromatography-mass spectrometry, which “is the most accurate, sensitive, and reliable method of
testing[.]” Applicant Exhibit P at 2.  On both occasions Applicant’s test results exceeded the cutoffs
established by DoD policy.  Government Exhibits 2, 4.  Additionally, Applicant stated to the OPM
4
investigator that, prior to the positive marijuana urinalysis, he had attended a party at which
marijuana was being used.  His claim of passive inhalation of marijuana smoke implicitly
acknowledges the accuracy of the subsequent urine test.  The record demonstrates that the
government has presented substantial evidence as to the allegations in the SOR.  Once the
government demonstrates a security concern, the burden is on an applicant to mitigate or rebut the
concern; the Directive presumes there is a nexus between proven conduct under any of the guidelines
and an applicant’s security eligibility.  See, e.g., ISCR Case No. 07-08113 at 3 (App. Bd. Jul. 15,
2008); and ISCR Case No. 03-18523 at 4 (App. Bd. Jun. 16, 2005).  The record supports the Judge’s
conclusions in this regard.  Furthermore, there is a presumption of good faith and regularity by
federal officials in the fulfillment of their duties.  Applicant failed to rebut that presumption.
Applicant contends that the Judge erred in his application of mitigating conditions and in his
whole-person analysis.  The Board finds that the Judge’s discussion of mitigating conditions and the
whole-person concept reflect a reasonable analysis of the sustainable findings of security concern,
and the Board sees no reason to disturb them.  See, e.g., ISCR Case No. 08-10008 at 2 (App. Bd.
Dec. 29, 2009).
Applicant questions whether the Judge’s findings of fact and his adverse conclusions,
including a conclusion that Applicant deliberately falsified his security clearance application, are
sustainable in light of the record as a whole.  After reviewing the record, the Board finds that the
Judge’s material findings are based on substantial evidence, or constitute reasonable characterization
or inferences that could be drawn from the record.  See, e.g., ISCR Case No. 06-24013 at 2 (App.
Bd. May 23, 2008).  The Judge met the standard discussed above by examining the relevant data and
articulating a satisfactory explanation for his decision.  The Judge’s decision is therefore sustainable.
Alternatively, Applicant requests that the case be remanded to obtain further testimony
regarding Applicant’s positive drug tests and to establish proper testing procedures by the Naval
Drug Testing Laboratory.  A full hearing on Applicant’s case was already held, and the Board is
without authority to regulate the procedures of the Naval Drug Testing Laboratory.
Order
The Judge’s decision denying Applicant a security clearance is AFFIRMED.                     
                                                                       
Signed: Michael Y. Ra’anan     
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: Jean E. Smallin            
Jean E. Smallin
Administrative Judge
5
Member, Appeal Board
Signed: James E. Moody         
James E. Moody
Administrative Judge
Member, Appeal Board