KEYWORD: Guideline H
DIGEST: Applicant has failed to establish error.  Adverse decsion affirmed.
CASENO: 14-00775.a1
DATE: 07/02/2015
DATE: July 2, 2015
In Re:
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Applicant for Security Clearance
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ISCR Case No. 14-00775
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro se
The Department of Defense (DoD) declined to grant Applicant a security clearance.  On
April 22, 2014, 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 decision
on the written record.  On April 24, 2015, after the close of the record, Defense Office of Hearings
and Appeals (DOHA) 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 raises the following issues on appeal: whether the Judge’s adverse decision is
arbitrary, capricious, or contrary to law.  Consistent with the following, we affirm.
The Judge made the following findings:  Applicant is 59 years old.  In answer to an e-QIP
question, Applicant noted that he used marijuana once a month from May 1973 until August 2013.
In his security clearance interview, he stated that his use early on was isolated and for short periods
of time, starting in high school until he joined the Navy in 1975.  He did not smoke marijuana while
in the Navy, but resumed it again in 1981 after his discharge.  He smoked it again until he married
in early 1983, and then stopped.  His marriage ended in divorce in 2003.  He continued to refrain
from smoking marijuana until August 2012.  He then used once monthly until April 2013.  His use
was recreational and he never paid for it since it was provided by the people he smoked with. 
Applicant no longer associates with anyone who uses marijuana.  He has no intention to use
marijuana in the future because his new job means a lot to him.  He has never received treatment or
counseling for drug use.  In his response to the Government’s File of Relevant Material (FORM),
Applicant noted that his e-QIP statement that he used marijuana monthly referred only to the last
period of use from August 2012 to April 2013.  Prior to that, his use was about once a month during
the times that he was using marijuana. 
The Judge concluded: If the evidence shows a significant period of time has passed without
evidence of drug involvement, there must be an evaluation whether that period of time demonstrates
changed circumstances or conduct sufficient to indicate a finding of reform or rehabilitation. 
Applicant used marijuana monthly from 2012 until 2013, so his use is recent and frequent.  He used
marijuana willingly so it was not used under any unique circumstances.  He stopped using marijuana
at times during his 40 years of marijuana use, but always returned to use the drug.  As he stated in
his response to the FORM, “I believe that I have consistently shown a capability to abstain from use
whenever I saw fit and when I determined that circumstances made it necessary.” Decision at 5. 
This is not the statement of an individual who decided not to use an illegal drug in the future.  It is
the statement of a person who is willing to use an illegal drug whenever he thinks necessary.  He has
not shown an unequivocal intent not to abuse drugs in the future.  Under these circumstances, two
years of abstinence from marijuana use is not a sufficient time for Applicant to meet his burden to
show changed circumstances or conduct that indicates he has reformed and will no longer use illegal
drugs.  There is no compelling evidence of a changed circumstance indicating reform or
rehabilitation.  Applicant has not mitigated th security concerns for illegal drug use.
Applicant asserts that his brief periods of marijuana use have been “played up” and
overstated, while his periods of non-use were ignored.  Applicant fails to establish error.  A review
of the Judge’s decision and the record evidence indicates that the Judge accurately described
Applicant’s past history of marijuana use, and accurately acknowledged the significant periods
where Applicant abstained from marijuana use.  The Board finds no reason to believe that the Judge
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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). 
Applicant references his statement that he has “consistently shown the capability to abstain
from use when I choose and circumstances made it necessary” and argues that the statement was
misinterpreted by the Judge.  He states that the statement was intended to show that he has no need
or desire to use drugs in the future, and the Judge’s failure to see it as the statement of someone who
has decided not to use drugs in the future was an erroneous interpretation.  The Board disagrees. 
The Judge’s conclusion that the statement evidenced an equivocal state of mind regarding future
drug use was reasonable.  A party’s 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).   
Applicant notes that the Judge mentions his active duty military service and prior
employment with a defense contractor, and yet must not have taken these facts into consideration
since they conclusively demonstrate his ability to reform himself and act responsibly.  The Applicant
fails to establish error.  A Judge is presumed to have considered all the evidence in the record unless
he or she specifically states otherwise.  See, e.g., ISCR Case No. 07-00196 at 3 (App. Bd. Feb. 20,
2009).  Moreover, 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).  The Board concludes that the Judge’s weighing of the
evidence in this case is sustainable. 
Some of Applicant’s assertions on appeal are directed toward Department Counsel.  He
asserts that Department Counsel submitted erroneous information and injected his personal opinion
into the proceedings, and caused the Judge to have a “slanted” opinion of him.  Applicant was given
the opportunity to respond to the FORM, and he did, in fact, avail himself of that opportunity.  The
chance to point out and establish inaccuracies in the Government’s case was readily available to him
at that time.  The Board notes that factual representations made by Department Counsel were well
documented and were reasonably supported by the record.  The “Argument” section of the FORM
was within the bounds of proper advocacy.  Applicant was not denied procedural due process by any
actions of Department Counsel in this case.  
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
ultimate unfavorable security clearance decision is sustainable.
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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: William S. Fields             
William S. Fields
Administrative Judge
Member, Appeal Board
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