KEYWORD: Guideline H; Guideline E
DIGEST: Applicant used marijuana from 1999 to January 2010 and had purchased marijuana.
Applicant had also been arrested in May 2002 on possession of marijuana with intent to
distribute marijuana charges.  Although the Judge found in favor of Applicant with respect to the
Guideline E allegations, he reasonably explained why the mitigating evidence was insufficient to
overcome the government’s security concerns under Guideline H.  Adverse decision affirmed.  
CASE NO: 10-04042.a1
DATE: 10/04/2011
DATE: October 4, 2011
In Re:
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Applicant for Security Clearance
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ISCR Case No. 10-04042
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 November 17, 2010, 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 August 8, 2011, after the hearing,
Administrative Judge Thomas M. Crean denied Applicant’s request for a security clearance.
Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raised the following issue on appeal: whether the Judge’s adverse clearance
decision is arbitrary, capricious or contrary to law.
Applicant seeks reversal of the Judge’s adverse decision arguing that the evidence
demonstrates that Applicant has mitigated the security concerns raised by his drug involvement.  In
support of his argument, he presents a detailed summary of the evidence presented at the hearing,
and resubmits the record from below along with a copy of the Judge’s decision. He also submits
some new evidence, which the Board cannot consider on appeal. See Directive ¶ E3.1.29.
Applicant’s presentation  does not demonstrate that the Judge’s decision is arbitrary, capricious or
contrary to law.
Once the government presents evidence raising security concerns, the burden shifts to the
applicant to establish mitigation.  Directive ¶ E3.1.15.  The presence of some mitigating evidence
does not alone compel the Judge to make a favorable security clearance decision.  As the trier of
fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence
outweighs the unfavorable evidence, or vice versa.  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. 10-00278 at 2 (App. Bd. Mar.
18, 2011).
In this case, the Judge made sustainable findings—consistent with Applicant’s own
admissions—that Applicant had used marijuana from approximately 1999 to at least January 2010,
and had purchased marijuana.  Applicant had also been arrested in May 2002 on charges of
Possession of Marijuana with Intent to Distribute Within Proximity of a School and Possession of
Marijuana with Intent to Distribute, and had subsequently pleaded guilty to an amended charge of
Drugs Manufacturing/Possession of Other Substance.  Decision at 2, 3, 4, 6 and 8; Answer at 1-2;
GE 1 (eQIP, dated Jan. 4, 2010) at 36-37; GE 2 (Interrogatories).  In his brief, Applicant
acknowledges that “. . . [he] can understand for a reason like that why [he had] gotten denied . . . a
clearance and a trust issue was raised.”  Applicant’s Brief at 1.
A review of the decision indicates that the Judge weighed the mitigating evidence offered
by Applicant—including his efforts at rehabilitation,  his favorable work performance and letters
of recommendation, and recent negative drug tests—against the length and seriousness of the
disqualifying conduct, and considered the possible application of relevant conditions and factors.
Decision at 3, 4, 6 and 8.  Although the Judge found in favor of Applicant with respect to the
Guideline E allegations, he reasonably explained why the mitigating evidence was insufficient to
overcome the government’s security concerns under Guideline H.  Id.
The Board does not review a case de novo.  After reviewing the record, the Board concludes
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 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
unfavorable security clearance decision is sustainable.
Order
The decision of the Judge denying Applicant a security clearance is AFFIRMED.
Signed: Jean E. Smallin           
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: James E. Moody         
James E. Moody
Administrative Judge
Member, Appeal Board
Signed: William S. Fields        
William S. Fields
Administrative Judge
Member, Appeal Board