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ISCR 20-03371: Guideline H security clearance appeal, denied (2021) · CASE

ISCR Case 20-03371denied

Case headnote

ISCR Case No. 20-03371

Oct 14, 2021· Hon. Michael Y. Ra'anan· appeal

Summary

This security clearance application was denied under Guideline H (Drug Involvement) due to the applicant's admitted misuse of prescription medication. The applicant, representing himself, acknowledged misusing prescription drugs from June 2017 to August 2020, a period that included time when he held a security clearance.

The judge found that the applicant's drug abuse constituted a disqualifying condition under AG ¶ 25. The denial was based on several factors: the significant duration of the applicant's admitted prescription medication misuse, insufficient evidence to assure that the drug abuse would not recur, and the applicant's failure to provide a signed statement of intent to abstain from future drug involvement.

The appeal board affirmed the judge's decision, concluding that the applicant did not demonstrate that the initial denial was arbitrary or capricious. Consequently, the security clearance application was denied.

Conditions referenced

Disqualifying

AG ¶ 25raisedDrug Involvement

Key rule quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with national security.’”
Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural posture

SOR issuedJan 5, 2021
Answer filed—Applicant requested a decision on the written record.
Hearing heldJul 27, 2021
Decision dateOct 14, 2021Decision affirmed on appeal.

Cite for

Affirmation of Adverse Decisions Based on Drug Involvement Under Guideline H
Importance of Providing Evidence of Rehabilitation in Security Clearance Cases
Limitations on Introducing New Evidence During the Appeal Process

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Affirmed

The appeal involved an applicant who was denied a security clearance due to drug involvement under Guideline H. The applicant argued that he had made changes to stop abusing medication, but the Board affirmed the denial, finding no harmful error in the Judge's decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRobert E. Coacher denied the clearance

Decided onthe written record

Guidelines belowGuideline H

What the Board reviewed

No specific harmful error alleged, raised by the applicantRejected
Applicant argued that he made changes in his life to stop abusing medication.

Why the Board ruled this way

The Board found that the Judge considered all evidence and articulated a satisfactory explanation for the decision, which was sustainable on the record.

Standard of review applied

No de-novo re-decisionNo new evidence on appealSubstantial-evidence reviewArbitrary-and-capricious review

Appeal Board panel

Michael Ra’anan (Chair)
James E. Moody
James F. Duffy

Descriptive structured reading of this decided, public Appeal Board decision: what the case says, not a prediction or advice.

Full decision

The complete, official text, footnotes and signatures included, is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

_______________________________________________ ) In the matter of: ) ) ) --------------------- ) ISCR Case No. 20-03371 ) ) Applicant for Security Clearance ) _______________________________________) DEPARTMENT OF DEFENSE DEFENSE LEGAL SERVICES AGENCY DEFENSE OFFICE OF HEARINGS AND APPEALS APPEAL BOARD POST OFFICE BOX 3656 ARLINGTON, VIRGINIA 22203 (703) 696-4759 KEYWORD: Guideline H DIGEST: Applicant also states that he has made changes in his life to stop abusing medication. These changes include obtaining the medication he needs under a doctor’s supervision and undergoing regular drug testing. His arguments are not enough to rebut the presumption that the Judge considered all of the evidence in the record or to demonstrate that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Adverse Decision is Affirmed. CASE NO: 20-03371 DATE: 10/14/2021 Date: October 14, 2021

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 January 5, 2021, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision―security concerns raised under Guideline H (Drug Involvement and Substance Misuse) of DoD Directive 5220.6 (January 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On July 27, 2021, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Robert E. Coacher denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The SOR alleged that Applicant misused a prescription medication from about June 2017 to August 2020, including while holding a security clearance. In responding to the SOR, Applicant admitted these allegations. The Judge noted that he was unable to conclude that Applicant’s drug abuse will not recur and that he failed to provide a signed statement of intent to abstain from drug involvement in the future. In his appeal brief, Applicant provides such a statement of intent. The Appeal Board, however, is prohibited from considering new evidence on appeal. Directive ¶ E3.1.29. In his brief, Applicant also states that he has made changes in his life to stop abusing medication. These changes include obtaining the medication he needs under a doctor’s supervision and undergoing regular drug testing. His arguments are not enough to rebut the presumption that the Judge considered all of the evidence in the record or to demonstrate that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 20-03503 at 2 (App. Bd. Sep. 14, 2021). Applicant has failed to establish the Judge committed any harmful error. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on the record. “The general standard is that a clearance may be granted only when ‘clearly consistent with 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 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