KEYWORD: Guideline H
DIGEST: Errors that Applicant identified in the Judge’s findings of fact were harmless. 
Applicant has not rebutted the presumption that the Judge was unbiased.  Applicant failed to
show that the Judge mis-weighed the evidence.  Adverse decision affirmed.   
CASE NO: 12-06707.a1
DATE: 09/18/2014
DATE: September 18, 2014
In Re:
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Applicant for Security Clearance
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ISCR Case No. 12-06707
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Cheryl Van Ackeren, Esq.
The Department of Defense (DoD) declined to grant Applicant a security clearance.  On
November 19, 2013, DoD issued a statement of reasons (SOR) advising Applicant of the basis for
that decision—security concerns raised under Guideline H (Drug Involvement) of Department of
Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant requested a hearing.
On June 25, 2014, after the hearing, Defense Office of Hearings and Appeals (DOHA)
Administrative Judge David M. White denied Applicant’s request for a security clearance.
Applicant appealed, pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.  
2
Applicant raises the following issue on appeal:  whether the Judge’s decision is arbitrary,
capricious, or contrary to law.  For the following reasons, the Board affirms the Judge’s unfavorable
security clearance decision. 
The Judge made the following findings:  Applicant is 54 years old.  He started using
marijuana while in the Army.  He first tested positive on a urinalysis test in 1982 and was referred
to a rehabilitation program, which he successfully completed.  He then transferred to overseas duty,
became disillusioned with his prospects for future service, and resumed his marijuana use.  He
bought and supplied marijuana to his fellow soldiers but never sold it.  When he refused additional
drug rehabilitation after testing positive for marijuana again, he was discharged from the Army in
1984.
Applicant regularly smoked marijuana on a recreational basis once or twice a month from
1980 until he tested positive for it on a company-directed urinalysis test in 2011.  He testified that
there were some unspecified periods during those 31 years where he did not smoke marijuana each
month.  He admitted knowing that his marijuana use violated his employer’s drug-free workplace
policies, was illegal, and was not permitted while holding a security clearance.  Applicant attended
three hour-long counseling sessions beginning in early 2014 because he knew that it would help with
the security clearance process.  He found the counseling useful.  Applicant’s counselor is not a staff
member of a recognized drug treatment program, although he did work as a substance abuse
counselor at a substance abuse recovery and treatment center from 2007 to 2009.  The counselor said
that Applicant did not meet the criteria for drug abuse or dependence, but needed assistance with
coping skills for stress.  Applicant is not participating in a drug treatment program nor is he subject
to urinalysis testing.  He submitted a signed statement of intent to refrain from illegal drug use.  He
stated that most of his time is now spent on assignment in a state distant from the one where he lives
and where he used marijuana, so he no longer spends much time with former drug-using associates.
Applicant testified that he has not used marijuana since October 2011.  
The Judge reached the following conclusions: Applicant admitted purchasing the marijuana
he used and sharing it with others, which is distribution regardless of whether he received money
in return.  Applicant held a security clearance throughout the more than 30 years that he used
marijuana, while knowing that it was both illegal and contrary to security guidelines.  He failed to
convincingly demonstrate that his drug use is unlikely to recur or does not cast doubt on his current
reliability, trustworthiness, or judgment.  Applicant claims that his move to another state for work
caused disassociation from his drug-using contacts, but admitted that he returns home to be around
them frequently.  There is no evidence of drug use after October 2011, but with a history of regular
use over more than 30 years this period of abstinence is not compelling or persuasive.  Applicant
has not undergone any drug treatment program, and his recently begun counseling program is not
under the care of a duly qualified medical professional.  The counseling is a positive step, but
insufficient to establish a mitigating condition.  Applicant failed to convincingly establish either
remorse for, or mitigation of, his disregard for the security implications of regular drug abuse while
holding a security clearance.    
 
3
Applicant argues that certain findings and conclusions of the Judge are erroneous and not
supported by the record.  His claims have mixed merit.
Applicant asserts that the Judge erred by finding that Applicant regularly used marijuana on
a once or twice monthly basis from 1980 until 2011.  He states that the Judge’s finding failed to
include repeated, lengthy periods of abstinence during the 30 year period.  The Judge’s finding is
based on statements made by Applicant to an interviewer during his security clearance investigation.
At the hearing, Applicant indicated that there were periods where he abstained from marijuana use
for months and years at a time and stated that, “I think I was a little overtruthful in the statements
when I said twice a month.”  However, the Judge also acknowledged in his findings that Applicant
testified that there were some unspecified periods during the 30 year time frame where he did not
smoke marijuana.  On balance, it does not appear to the Board that the Judge erroneously
exaggerated the extent of Applicant’s marijuana use.  The Judge’s findings on this point are
reasonably supported by the record evidence.
Applicant asserts that the Judge erred by making his finding that he “distributed” marijuana.
The Judge acknowledged that Applicant was not in the business of selling the drug for money, but
he nevertheless supplied marijuana to others by regularly sharing it with them.  This finding by the
Judge put Applicant’s actions into proper context, and do not include any suggestion that Applicant
was in the business of dealing the drug.  The Judge’s characterization of Applicant’s acts as
“distribution” was not erroneous.
The record evidence indicates that, after failing a drug test with his employer, Applicant was
required to take a follow-on test by a certain date.  Applicant did not test on or before that date, but
did take and pass a drug test approximately 30 days after the cut-off date established for the follow-
on test.  The Judge found that the reasons for the delay were “unexplained.”  Applicant points to
record evidence that he was deployed to a remote location during the period in question, thus
preventing him from taking the test.  Applicant now argues that the Judge’s finding implies that
Applicant intentionally avoided taking the follow-on test for likely fear of failing the test.  Given
the evidence of record, the Judge’s finding that the delay was “unexplained” is error.  However,
there is nothing in the decision to suggest the Judge implied that Applicant delayed over fears of a
positive drug test.  The Judge’s error was harmless.
Applicant points out that the Judge made a finding that he returned to his former home on
frequent occasions to be around drug using contacts, thus negating the possibility that Applicant no
longer associated with the friends he formerly met to smoke marijuana.  Applicant insists that he has
disassociated himself from his drug-using contacts and states that the record evidence does not
indicate that he visits his old contacts.  Applicant has established error.  There is nothing in the
record to support the Judge’s conclusion that Applicant returns to the place of his former residence
and continues old associations with drug users.  Nevertheless, there is no indication that the Judge
relied on this conclusion to any significant extent when making his ultimate decision in the case.
After a review of the record, and the entirety of the Judge’s decision, the Board concludes that the
Judge’s error did not affect the final result of the case.  Therefore the error is harmless.
4
Applicant points to the alleged errors in the preceding paragraphs in claiming that the Judge
was biased against him. The fact that the claims of harmful error are, for the most part, groundless
significantly undercuts Applicant’s claim of bias.  Moreover, there is a rebuttable presumption that
a Judge is impartial and unbiased, and a party seeking to overcome that presumption has a heavy
burden of persuasion.  See, e.g., ISCR Case No. 07-02253 at 3 (App, Bd. Mar 28, 2008).  Applicant
does not overcome that presumption here.  In his decision the Judge indicated that on certain points,
he did not find Applicant credible, but a finding of lack of credibility does not rise to the level of
bias on the part of the Judge.  
Applicant argues that the Judge erred in his application of the mitigating factors.  He
emphasizes his three years of abstinence, his voluntary submission to regular drug testing, the
negative results of those tests, his seeking of counseling regarding his drug use, and his
establishment of new routines to support his sobriety.  Applicant’s assertions do not establish error
on the part of the Judge.  The presence of some mitigating evidence does not alone compel the Judge
to make a favorable security clearance decision.  See, e.g., ISCR Case No. 06-25157at 2 (App. Bd.
Apr. 4, 2008).  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.  See, e.g., ISCR
Case No. 06-10320 at 2 (App. Bd. Nov. 7, 2007).  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).
The gravamen of the Judge’s decision is the fact that the period of abstinence established by
the evidence is not compelling in terms of mitigation when considered in the context of Applicant’s
30 year history of marijuana use, especially when that use took place despite Applicant’s knowledge
that it was illegal and contrary to the Government’s and his subsequent employers’ drug-free
policies.  When concluding that mitigation had not been established, the Judge also emphasized the
fact that Applicant has not undergone a drug treatment program, nor is his recently begun counseling
regimen under the supervision of a duly qualified medical professional.  These conclusions are
sustainable.  The Board finds no reason to believe that the Judge did not properly weigh the evidence
or that he failed to consider all the evidence of record.  See, e.g., ISCR Case No. 11-06622 at 4 (App.
Bd. Jul. 2, 2012). 
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
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 ultimate unfavorable security clearance decision is sustainable.
5
Order
The decision of the Judge is AFFIRMED.
Signed: Michael Ra’anan                
Michael Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: Jeffrey D. Billett                 
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: James E. Moody                 
James E. Moody
Administrative Judge
Member, Appeal Board