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\Faɰ̘RlR͒2ה}k6M٬:$ G gJO x'iţ>> BDC
( )Tj
EMC
(defense contractor] serves as a deterrent to any future drug abuse)Tj
T*
(on his part." )Tj
(For the reasons that follow, I find persuasive Department Counsel's argu\
ment that the Judge's finding does)Tj
T*
(not reflect a)Tj
/Span<>> BDC
( )Tj
EMC
(reasonable interpretation of the record evidence as a whole.)Tj
0 -2.125 TD
(Applicant )Tj
4.193 0 Td
(used marijuana for several years while in the U.S. military despite the \
fact such drug use was illegal and)Tj
-4.193 -1.125 Td
(could result in disciplinary action \(up to and including court martial\)\
and dismissal)Tj
/Span<>> BDC
( )Tj
EMC
(from military service. )Tj
42.295 0 Td
(Applicant)Tj
-42.295 -1.125 Td
(used marijuana for several years after he was granted a security clearan\
ce in 1989 despite the fact he knew it was illegal)Tj
0 -1.125 TD
(and inconsistent with holding a security)Tj
/Span<>> BDC
( )Tj
EMC
(clearance. )Tj
20.438 0 Td
(Furthermore, the record evidence supports the Administrative Judge's)Tj
-20.438 -1.125 Td
(finding that Applicant had a "nonchalant attitude" about marijuana use. \
)Tj
28.725 0 Td
(The totality of the record evidence shows)Tj
-28.725 -1.125 Td
(Applicant was not deterred from using marijuana for many years despite i\
ts illegality, its potential for disciplinary action)Tj
T*
(\(including court martial\) and possible dismissal from military service\
, and its)Tj
/Span<>> BDC
( )Tj
EMC
(potential for disciplinary action by his)Tj
T*
(company \(a defense contractor\). )Tj
13.132 0 Td
(Balanced against Applicant's long history of a demonstrated "nonchalant \
attitude")Tj
-13.132 -1.125 Td
(about marijuana use despite its illegality and)Tj
/Span<>> BDC
( )Tj
EMC
(the potentially serious adverse consequences associated with such drug)Tj
T*
(use, there )Tj
4.082 0 Td
(is Applicant's assertion -- made after he was caught by a positive drug \
screen in July 1997 -- that he now)Tj
-4.082 -1.125 Td
(realizes that)Tj
/Span<>> BDC
( )Tj
EMC
(he should not use marijuana and will not do so in the future. )Tj
29.326 0 Td
(The Judge failed to provide a rational)Tj
-29.326 -1.125 Td
(explanation why she found that Applicant --- who was not deterred from m\
any years of marijuana use)Tj
/Span<>> BDC
( )Tj
EMC
(despite its)Tj
T*
(potential for serious adverse consequences during his military service, \
despite its illegality, and despite its potential for)Tj
T*
(adverse employment consequences prior to his positive drug screen in)Tj
/Span<>> BDC
( )Tj
EMC
(July 1997 --- would suddenly be deterred from)Tj
T*
(using marijuana solely because of his currently expressed desire to keep\
his job. )Tj
32.269 0 Td
(Nor does the Judge explain how)Tj
-32.269 -1.125 Td
(Applicant's currently-stated interest in)Tj
/Span<>> BDC
( )Tj
EMC
(keeping his job \(expressed only after he was caught by a positive drug \
test result\))Tj
T*
(overcomes the strong evidence of Applicant's long history of demonstrate\
d indifference to his obligations as a military)Tj
T*
(member, his legal obligations as a citizen, and his fiduciary duties as \
a holder of a security clearance since 1989. )Tj
45.234 0 Td
(Given)Tj
-45.234 -1.125 Td
(Against Applicant's 24-year history of drug use that demonstrates poor j\
udgment,)Tj
/Span<>> BDC
( )Tj
EMC
(unreliability, and indifference to his)Tj
T*
(obligations and responsibilities, Applicant's statement that he will not\
use marijuana again because he wants to keep his)Tj
T*
(current job is entitled to little weight. )Tj
/TT1 1 Tf
15.108 0 Td
(See)Tj
/TT0 1 Tf
/Span<>> BDC
( )Tj
EMC
(Directive, Additional Procedural Guidance, Item 32.a. )Tj
23.575 0 Td
(The Judge's finding of)Tj
-38.683 -1.125 Td
(reform does not logically follow from her other findings about Applicant\
's overall history of conduct and runs contrary)Tj
T*
(to)Tj
/Span<>> BDC
( )Tj
EMC
(the clear weight of the record evidence.)Tj
0 -2.125 TD
(Department Counsel also contends the Administrative Judge's favorable de\
cision is arbitrary, capricious, and contrary to)Tj
0 -1.125 TD
(law because it is not supported by the record evidence as a whole, and i\
t is based)Tj
/Span<>> BDC
( )Tj
EMC
(on erroneous reasoning. )Tj
42.376 0 Td
(I find)Tj
-42.376 -1.125 Td
(Department Counsel's contention persuasive.)Tj
0 -2.125 TD
(An Administrative Judge's decision can be arbitrary and capricious if: i\
t does not examine relevant evidence; it fails to)Tj
0 -1.125 TD
(articulate a satisfactory explanation for its conclusions, including a r\
ational)Tj
/Span<>> BDC
( )Tj
EMC
(connection between the facts found and the)Tj
T*
(choice made; it does not consider relevant factors; it reflects a clear \
error of judgment; it fails to consider an important)Tj
T*
(aspect of the case; it offers an)Tj
/Span<>> BDC
( )Tj
EMC
(explanation for the decision that runs contrary to the record evidence; \
or it is so)Tj
T*
(implausible that it cannot be ascribed to a mere difference of opinion. \
)Tj
/TT1 1 Tf
28.073 0 Td
(See Motor Vehicle Mfrs. Ass'n v. State Farm)Tj
/Span<>> BDC
( )Tj
EMC
(utual)Tj
-28.073 -1.125 Td
(Automobile Insurance Co.)Tj
/TT0 1 Tf
10.526 0 Td
(, 463 U.S. 29, 43 \(1983\). )Tj
/TT1 1 Tf
(Accord)Tj
/TT0 1 Tf
( ISCR Case No. 97-0184 \(June 16, 1998\) at p. 5 n.3; ISCR)Tj
-10.526 -1.125 Td
(Case ISCR Case No. 95-0600 \(May 16, 1996\) at p. 4. )Tj
(Under this standard,)Tj
/Span<>> BDC
( )Tj
EMC
(the Administrative Judge's decision is)Tj
T*
(arbitrary and capricious.)Tj
0 -2.125 TD
(Despite the Administrative Judge's largely negative findings about Appli\
cant's 24-year history of marijuana use, and the)Tj
0 -1.125 TD
(Judge's recognition that most of the Drug Involvement Mitigating Guideli\
nes)Tj
/Span<>> BDC
( )Tj
EMC
(did not apply, the Judge tried to justify her)Tj
0 -1.375 TD
(favorable decision solely on Drug Involvement Mitigating Guideline 3)Tj
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( \(Decision at p. 6\). )Tj
7.692 0 Td
(The Judge's analysis was)Tj
-36.911 -1.125 Td
(flawed. )Tj
(The mere presence or absence)Tj
/Span<>> BDC
( )Tj
EMC
(of an Adjudicative Guideline, whether disqualifying or mitigating, is no\
t solely)Tj
0 -1.125 TD
(dispositive of a case. )Tj
/TT1 1 Tf
8.581 0 Td
(See, e.g.)Tj
/TT0 1 Tf
(, ISCR Case No. 96-0869 \(September 11, 1997\) at p. 4. )Tj
25.718 0 Td
(Nor can a Judge consider any)Tj
-34.299 -1.125 Td
(given Adjudicative Guideline in isolation and without regard to record e\
vidence that fairly detracts from the weight to)Tj
T*
(which an applicable guideline may be reasonably entitled. )Tj
/TT1 1 Tf
23.464 0 Td
(See, e.g.)Tj
/TT0 1 Tf
3.332 0 Td
(, ISCR Case)Tj
/Span<>> BDC
( )Tj
EMC
(No. 97-0356 \(April 21, 1998\) at pp. 5-6)Tj
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(97-0803.a1)Tj
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0 -86 TD
(file:///usr.osd.mil/)Tj
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(...)Tj
(yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archi\
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49.74 0 Td
([7/2/2021 4:04:02 PM])Tj
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(have been overcome.)Tj
ET
Q
BT
0 g
12 0 0 12 16 729.75 Tm
(The Board need not agree with the Administrative Judge's findings and co\
nclusions in order to conclude that)Tj
0 -1.125 TD
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ity clearance)Tj
/Span<>> BDC
( )Tj
EMC
(decision is arbitrary, capricious,)Tj
T*
(or contrary to law. )Tj
7.636 0 Td
(The fact that Department Counsel demonstrated )Tj
19.438 0 Td
(Applicant had a 24-year history of )Tj
13.996 0 Td
(marijuana use)Tj
-41.07 -1.125 Td
(and had a casual attitude about that use in the past)Tj
/Span<>> BDC
( )Tj
EMC
(was not dispositive of the case. )Tj
32.936 0 Td
(The Judge clearly evaluated that)Tj
-32.936 -1.125 Td
(negative evidence in light of the record evidence as a whole \(Directive\
, Section F.3.\) and pertinent Adjudicative)Tj
T*
(Guidelines and)Tj
/Span<>> BDC
( )Tj
EMC
(concluded Applicant had presented sufficient evidence in extenuation and\
mitigation to warrant a)Tj
T*
(favorable security clearance decision. )Tj
15.297 0 Td
(The Board need not agree with the Judge to conclude her analysis)Tj
/Span<>> BDC
( )Tj
EMC
(reflects a)Tj
-15.297 -1.125 Td
(plausible, reasonable interpretation of the record evidence and is consi\
stent with pertinent provisions of the Directive.)Tj
/TT1 1 Tf
0 -2.125 TD
(Conclusion)Tj
/TT0 1 Tf
T*
(Department Counsel has failed to meet its burden on appeal of demonstrat\
ing error that warrants remand or reversal.)Tj
0 -1.125 TD
(Accordingly, the Board affirms the Administrative Judge's March 18, 1998\
)Tj
/Span<>> BDC
( )Tj
EMC
(decision.)Tj
0 -2.125 TD
(See separate opinion)Tj
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(Emilio Jaksetic)Tj
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(Administrative Judge)Tj
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(Chairman, Appeal Board)Tj
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(Signed: )Tj
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q 1 0 0 1 16 442.5 cm
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12 0 0 12 55.668 443.25 Tm
(Michael Y. Ra'anan)Tj
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q 1 0 0 1 55.668 442.5 cm
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(Michael Y. Ra'anan)Tj
T*
(Administrative Judge)Tj
T*
(Member, Appeal Board)Tj
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(Signed: )Tj
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q 1 0 0 1 16 340.5 cm
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39.668 0 l
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12 0 0 12 55.668 341.25 Tm
(Jeffrey D. Billett)Tj
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q 1 0 0 1 55.668 340.5 cm
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80.977 0 l
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BT
12 0 0 12 16 315.75 Tm
(Jeffrey D. Billett)Tj
T*
(Administrative Judge)Tj
T*
(Member, Appeal Board)Tj
/TT1 1 Tf
T*
(Separate Opinion of Administrative Judge Emilio Jaksetic,)Tj
T*
(Concurring in part and dissenting in part)Tj
/TT0 1 Tf
T*
(I fully concur with the majority's statement of the case and the appeal \
issues, and its discussion and resolution of the)Tj
0 -1.125 TD
(first appeal issue. )Tj
7.22 0 Td
(However, I respectfully dissent from the majority's decision to)Tj
/Span<>> BDC
( )Tj
EMC
(affirm the Administrative Judge's)Tj
-7.22 -1.125 Td
(favorable decision. )Tj
7.858 0 Td
(For the reasons that follow, I conclude Department Counsel has demonstra\
ted harmful error by the)Tj
-7.858 -1.125 Td
(Judge that warrants reversal.)Tj
0 -2.125 TD
(I fully concur with the majority's discussion about the Administrative J\
udge's responsibility for making findings of fact,)Tj
0 -1.125 TD
(and the Board's scope of review when those factual findings are challeng\
ed on)Tj
/Span<>> BDC
( )Tj
EMC
(appeal. )Tj
34.695 0 Td
(However, unlike the majority, I)Tj
-34.695 -1.125 Td
(conclude there is record evidence that clearly detracts from and fatally\
undermines the Judge's finding that Applicant)Tj
T*
(has demonstrated reform sufficient to)Tj
/Span<>> BDC
( )Tj
EMC
(warrant a favorable security clearance decision.)Tj
0 -2.125 TD
(The Administrative Judge found that Applicant had a 24-year history of m\
arijuana use \(spanning almost all of his adult)Tj
0 -1.125 TD
(life\), with varying frequency: 1 to 3 times a month during 1973-1975; a\
bstinence)Tj
/Span<>> BDC
( )Tj
EMC
(from October 1975 to August 1976; 1)Tj
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(file:///usr.osd.mil/)Tj
7.166 0 Td
(...)Tj
(yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archi\
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49.74 0 Td
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(is correct in stating that Section F.3 of the Directive requires the app\
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ET
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/Span<>> BDC
( )Tj
EMC
(application of Disqualifying Guideline 3 is not persuasive.)Tj
0 -2.125 TD
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the Adjudicative Guidelines. )Tj
/TT1 1 Tf
41.046 0 Td
(See, e.g.)Tj
/TT0 1 Tf
3.332 0 Td
(, ISCR)Tj
-44.377 -1.125 Td
(Case No. 95-0817 \(February 21, 1997\) at p. 4. )Tj
(Where the record evidence supports)Tj
/Span<>> BDC
( )Tj
EMC
(application of a particular)Tj
0 -1.125 TD
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T*
(warranted under the particular facts of the case. )Tj
19.24 0 Td
(ISCR)Tj
/Span<>> BDC
( )Tj
EMC
(Case No. 95-0622 \(April 18, 1997\) at p. 3. )Tj
(Disqualifying)Tj
-19.24 -1.125 Td
(Guideline 3 encompasses situations like the instant case where an applic\
ant uses marijuana after the granting of a)Tj
T*
(security clearance. )Tj
7.689 0 Td
(However,)Tj
/Span<>> BDC
( )Tj
EMC
(another clearly stated component of the guideline is the requirement tha\
t the use be)Tj
-7.689 -1.125 Td
(current. )Tj
3.332 0 Td
(The record evidence in this case does not require )Tj
19.797 0 Td
(application of the guideline as there is no evidence of)Tj
/Span<>> BDC
( )Tj
EMC
(current)Tj
-23.129 -1.125 Td
(use.)Tj
0 -2.125 TD
(2. )Tj
(Whether the Administrative Judge's favorable decision is arbitrary, capr\
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( )Tj
(Department)Tj
-40.028 -1.125 Td
(Counsel contends the Administrative Judge's decision is arbitrary, capri\
cious or contrary)Tj
/Span<>> BDC
( )Tj
EMC
(to law because: \(a\) the record)Tj
0 -1.125 TD
(evidence does not support the Judge's finding that there is "no reason t\
o doubt the sincerity of [Applicant's] commitment)Tj
T*
(to remain drug free"; and \(b\) in light of the record)Tj
/Span<>> BDC
( )Tj
EMC
(evidence as a whole, the Judge's favorable decision is not a common)Tj
T*
(sense one that is consistent with the national security. )Tj
21.662 0 Td
(For the reasons that follow, the Board concludes Department)Tj
-21.662 -1.125 Td
(Counsel has)Tj
/Span<>> BDC
( )Tj
EMC
(failed to demonstrate error by the Judge.)Tj
0 -2.125 TD
(As the trier of fact, the Administrative Judge has the primary responsib\
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41.573 0 Td
(Directive,)Tj
-41.573 -1.125 Td
(Additional Procedural Guidance, Item 25. )Tj
17.023 0 Td
(On appeal, the Board must )Tj
10.942 0 Td
(consider not)Tj
/Span<>> BDC
( )Tj
EMC
(only whether there is evidence)Tj
-27.965 -1.125 Td
(supporting a Judge's findings, but also whether there is evidence that f\
airly detracts from the weight of the evidence)Tj
0 -1.125 TD
(supporting those findings. )Tj
10.666 0 Td
(Directive, Additional)Tj
/Span<>> BDC
( )Tj
EMC
(Procedural Guidance, Item 32.a. )Tj
/TT1 1 Tf
21.937 0 Td
(See,)Tj
/TT0 1 Tf
( )Tj
/TT1 1 Tf
(e.g.)Tj
/TT0 1 Tf
(, ISCR Case No. 97-0191)Tj
-32.604 -1.125 Td
(\(April 28, 1998\) at p. 4. )Tj
9.749 0 Td
(Whether there is sufficient evidence to support a Judge's findings is a \
question of law, not one)Tj
-9.749 -1.125 Td
(of fact. )Tj
3.082 0 Td
(See,)Tj
/Span<>> BDC
( )Tj
EMC
(e.g., ISCR Case No. 97-0356 \(April 21, 1998\) at p. 4 n.7. )Tj
25.108 0 Td
(Here, there is record evidence that arguably)Tj
-28.19 -1.125 Td
(detracts from the Judge's finding that Applicant has demonstrated reform\
sufficient to warrant a)Tj
/Span<>> BDC
( )Tj
EMC
(favorable security)Tj
T*
(clearance decision. )Tj
7.856 0 Td
(However, there is also ample record evidence that supports the Judge's f\
inding )Tj
31.643 0 Td
(that Applicant has)Tj
-39.5 -1.125 Td
(made a genuine commitment to remain drug free.)Tj
0 -2.125 TD
(The Administrative Judge found that Applicant had a 24-year history of m\
arijuana use )Tj
34.796 0 Td
(with )Tj
(a frequency that lessened)Tj
-34.796 -1.125 Td
(considerably \(from multiple uses per month to about five times a year\)\
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/Span<>> BDC
( )Tj
EMC
(about 1990. )Tj
37.741 0 Td
(She found that Applicant)Tj
-37.741 -1.125 Td
(used the drug during the period of his military service and after being \
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42.929 0 Td
(The Judge)Tj
-42.929 -1.125 Td
(also found that Applicant had demonstrated)Tj
/Span<>> BDC
( )Tj
EMC
(a nonchalant attitude in the past toward illegal drugs as demonstrated b\
y his)Tj
0 -1.125 TD
(use of marijuana in violation of the policy of his employer and the Depa\
rtment of Defense )Tj
36.322 0 Td
(against drug use.)Tj
-36.322 -2.125 Td
(Notwithstanding the above findings, the Judge made additional findings t\
hat are supported by the record evidence and)Tj
0 -1.375 TD
(that, taken together, )Tj
8.191 0 Td
(provide sufficient basis for her conclusion that Drug)Tj
/Span<>> BDC
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