KEYWORD: Guideline H
DIGEST: On this record, Applicant was not denied adequate notice of his rights to submit
mitigating evidence under the Directive. Adverse decision affirmed.
CASENO: 15-07110.a1
DATE: 06/09/2017
DATE: June 9, 2017
In Re:
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Applicant for Security Clearance
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ISCR Case No. 15-07110
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 May
6, 2016, 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
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on the written record.  On March 20, 2017, after considering the record, Defense Office of Hearings
and Appeals (DOHA) Administrative Judge Eric H. Borgstrom denied Applicant’s request for a
security clearance.  Applicant appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
On appeal, Applicant argues that he was denied due process because he “was not given the
opportunity to submit” a statement of intent not to abuse drugs in the future.  Applicant’s argument
lacks merit.
The record shows that Department Counsel advised Applicant that he had 30 days from
receipt of the government’s File of Relevant Material (FORM) to submit documents “setting forth
objections, rebuttal, extenuation, mitigation, or explanation, as appropriate.”  Applicant’s copy of
the FORM was accompanied by a DOHA cover letter, which advised Applicant of his right to
submit objections “or any additional information you wish to be considered.”  DOHA Letter, dated
June 20, 2016.  The DOHA official enclosed a copy of the Directive, which explains an applicant’s
rights in detail, and he advised Applicant how he could access the Directive on line.  The enclosed
Directive informed Applicant that a statement of intent not to abuse drugs in the future was evidence
that a Judge could consider in evaluating an applicant’s case in mitigation.  See Directive, Enclosure
2, ¶ 26(b).1  Applicant responded to the FORM by providing two documentary exhibits, which were
forwarded by Department Counsel to the Judge without objection.  Applicant was not denied
adequate notice of his rights to submit mitigating evidence under the Directive.  See, e.g., ISCR Case
No. 15-00092 at 2 (App. Bd. Apr. 8, 2016). 
The Judge examined the relevant data and articulated a satisfactory explanation for the
decision.  It is an applicant’s job to present evidence sufficient to mitigate the concerns raised in his
or her case, and the applicant bears the ultimate burden of persuasion that he or she should be
granted a clearance. Directive ¶ E3.1.15.  The Judge’s conclusion that Applicant had not met his
burden of persuasion 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). See also Directive, Enclosure 2 ¶ 2(b): “Any doubt
concerning personnel being considered for access to classified information will be resolved in favor
of the national security.”
1Applicant also received a copy of the Directive along with the SOR.
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Order
The decision is AFFIRMED.
Signed: James E. Moody         
James E. Moody
Administrative Judge
Member, Appeal Board
Signed: James F. Duffy            
James F. Duffy
Administrative Judge
Member, Appeal Board
Signed: William S. Fields         
William S. Fields
Administrative Judge
Member, Appeal Board
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