KEYWORD: Guideline E; Guideline H; Guideline J
DIGEST: A Judge may weigh the same evidence differently under different guidelines.  In the
case before us, the Judge’s analysis under Guideline E devoted particular attention to
Applicant’s drug use while holding a clearance.  This was reasonable, in view of the inclusion
under Guideline E of conduct that evidences questionable judgment.  Applicant has not shown
that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to
law.  Neither has he rebutted the presumption that the Judge considered all of the evidence in the
record. Adverse decision affirmed.
CASENO: 16-02483.a1
DATE: 06/11/2018
DATE: June 11, 2018
In Re:
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Applicant for Security Clearance
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ISCR Case No. 16-02483
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Victoria Williamson, Esq.
The Department of Defense (DoD) declined to grant Applicant a security clearance.  On
September 9, 2016, DoD issued a statement of reasons (SOR) advising Applicant of the basis for
that decision–security concerns raised under Guideline H (Drug Involvement), Guideline J (Criminal
Conduct), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2,
1992, as amended) (Directive).  Applicant requested a hearing.  On March 19, 2018, after the
hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Arthur E. Marshall,
Jr. denied Applicant’s request for a security clearance.  Applicant appealed pursuant to Directive
¶¶ E3.1.28 and E3.1.30.
Applicant raised the following issue on appeal: whether the Judge’s adverse decision was
arbitrary, capricious, or contrary to law.  The Judge’s favorable findings under Guidelines H and J
are not at issue in this appeal.  Consistent with the following, we affirm. 
The Judge’s Findings of Fact and Analysis
Applicant, who is 27 years old, first received a security clearance in 2013.  In 2014, he and
his fiancée broke off their engagement.  Applicant began associating with friends he had met at a
local bar.  In May 2014, he noticed one of them smoking marijuana, and he joined in despite
knowing that such conduct was not consistent with holding a clearance.  He used the drug at least
three times more.  Applicant no longer associates with his friends who use marijuana, and he does
not intend to use it in the future.  Applicant enjoys a good reputation for his character.
Applicant’s drug use was alleged under all three Guidelines.  Though resolving two in
Applicant’s favor, the Judge concluded that he had not mitigated the concerns under Guideline E. 
He cited to evidence that Applicant used marijuana while holding a clearance and while knowing
that such use was not consistent with the requirements for holding a clearance.  He stated that
Applicant’s excuses–loneliness after a breakup, intoxication, etc–were not unique nor sufficient to
justify a clearance.  The Judge acknowledged that Applicant has been abstinent for four years. 
However, he found Applicant’s drug use while holding a clearance to be aggravating and “a
grievous breach of trust.”  Decision at 8.  He stated that more time is required for Applicant to show
that his security-significant conduct is behind him.
Discussion
Applicant challenges the Judge’s mitigation analysis.  He notes in particular what he views
to be an inconsistency in the decision, the different result under Guideline E from the other two
guidelines.  He argues that the circumstances that justified favorable findings under Guidelines H
and J should apply with equal force to Guideline E.  He also cites to his breakup with his fiancée,
his four years without re-offense, and other favorable evidence.  
A Judge may weigh the same evidence differently under different guidelines.  See, e.g., ISCR
Case No. 14-00715 at 3 (App. Bd. Dec. 10, 2014).  In the case before us, the Judge’s analysis under
Guideline E devoted particular attention to Applicant’s drug use while holding a clearance.  This
was reasonable, in view of the inclusion under Guideline E of conduct that evidences questionable
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judgment.  See Directive, Encl. 2, App. A ¶ 15.  See also  ISCR Case No. 13-01281 at 4 (App. Bd.
Aug. 4, 2014), in which the Judge evaluated drug use differently under Guidelines H and E.  In the
case before us, Applicant has not shown that the Judge weighed the evidence in a manner that was
arbitrary, capricious, or contrary to law.  Neither has he rebutted the presumption that the Judge
considered all of the evidence in the record.  See, e.g., ISCR Case No. 16-01077 at 2-3 (App. Bd.
Apr. 25, 2018).       
The Judge examined the relevant evidence and articulated a satisfactory explanation for the
decision, regarding both the mitigating conditions and the whole-person factors.  The decision 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, Encl. 2, App. A ¶ 2(b):  “Any doubt concerning personnel
being considered for national security eligibility will be resolved in favor of the national security.”
Order
The Decision is AFFIRMED.  
Signed: Michael Ra’anan             
Michael Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: James E. Moody               
James E. Moody
Administrative Judge
Member, Appeal Board
Signed: James F. Duffy                  
James F. Duffy
Administrative Judge
Member, Appeal Board
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