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ISCR 19-01476: Guideline E security clearance appeal, denied (2022) · CASE

ISCR Case 19-01476denied

Case headnote

ISCR Case No. 19-01476

Oct 26, 2022· Hon. Moira D. Modzelewski· appeal

Summary

A married applicant in their mid-forties with three children was denied a security clearance due to concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The applicant admitted to using marijuana from 1991 until late 2018, including periods while holding a security clearance. This extensive history of drug use was a primary disqualifying condition (H.1).

Further, the applicant falsified security clearance applications in both 2011 and 2017 by omitting his marijuana use, which constituted a disqualifying condition under Guideline E (E.2). While the applicant ceased marijuana use in late 2018 and provided subsequent negative drug test results (H.2), and mitigating conditions were considered for personal conduct (E.2), these were insufficient to overcome the concerns.

The judge ultimately determined that the applicant's long history of drug use and repeated lack of candor regarding this involvement posed unacceptable risks to national security. Consequently, the appeal was denied.

Conditions referenced

Disqualifying

H.1raisedDrug Involvement
E.2raisedFalsification of Information

Mitigating

H.2rejectedNo Recent Drug UseThe judge noted the applicant's persistent withholding of information about his drug involvement.
E.2rejectedVoluntary DisclosureThe judge found the applicant's disclosures came too late to meet the mitigating requirements.

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 issuedJul 26, 2019
Answer filed—
Hearing heldJul 15, 2022
Decision dateOct 26, 2022

Cite for

Denial of Security Clearance Due to Drug Involvement Under Guideline H
Lack of Candor in Security Clearance Applications Under Guideline E
Impact of Long-term Drug Use on National Security Eligibility

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 concerned the denial of a security clearance based on drug involvement and personal conduct. The applicant argued that the Judge's decision was arbitrary and capricious due to errors in applying mitigating conditions. The Board affirmed the Judge's decision, finding no harmful error and that the Judge's analysis was supported by substantial evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRoger C. Wesley denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
The Judge's adverse decision was arbitrary, capricious, or contrary to law due to errors in applying the mitigating conditions and whole-person concept.

Why the Board ruled this way

The Board found no error in the Judge's analysis and determined that the decision was sustainable on the record, with the Judge appropriately weighing the evidence and articulating a satisfactory explanation for the decision.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

James F. Duffy (Chair)
James E. Moody
Moira Modzelewski

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

APPEARANCES

_______________________________________________ ) In the matter of: )

)

----- )

ISCR Case No. 19-01476

)

) Applicant for Security Clearance ) _______________________________________) DATE: October 26, 2022

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT F. Kevin Bond, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On July 26, 2019, 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) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On July 15, 2022, after close of the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Roger C. Wesley denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. In his appeal brief, Applicant raised the following issues: whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law due to errors in applying the mitigating conditions and whole-person concept. For the reasons stated below, the Judge’s decision is affirmed.

The Judge’s Findings of Fact and Analysis Applicant is in his mid-forties, is married, and has three children. He has worked for his current employer since 2006 and was granted a security clearance in late 2011. The SOR alleged that Applicant used marijuana with varying frequency from 1991 to late 2018, including while holding a security clearance, and that he falsified responses in security clearance applications (SCAs) in 2011 and 2017 by failing to disclose his use of marijuana. In responding to the SOR, Applicant admitted the alleged marijuana use, but “claimed to have incorrectly omitted his use of marijuana in both [SCAs.]” Decision at 2. The Judge found against Applicant on the three allegations. Applicant began using marijuana in high school, used it about three times a month in college, ceased using it for a number of years, and again used it once or twice a month from 2007 to 2018. He used it to reduce anxiety and relieve upset stomach symptoms, and typically smoked it with his spouse or a friend. He was aware that his use of marijuana violated DoD regulations. In late 2018, he ceased using it due to concerns about the safety of his children. Between 2019 and 2022, he took voluntary drug tests that had negative results. After referring himself to substance abuse counseling in 2019, a counselor determined he did not meet the criteria for a substance use disorder and entered “no diagnosis” as formal diagnostic impressions in the categories of behavioral, medical, and psychological. Decision at 4. “Applicant has committed to abandoning all involvement with marijuana” and “exhibits no visible signs or indications of [returning] to illegal drug use in the foreseeable future.” Decision at 8. However, given his 27 year history of marijuana use and “his persistent withholding of information about his involvement with the drug, it is still too soon to absolve Applicant of risks of recurrence.” Id. Applicant’s omissions of his marijuana use on his 2011 and 2017 SCAs “were made knowingly and willfully and reflected a lack of candor.” Decision at 4. When asked during a 2018 background interview if he had any illegal drug involvement in the last seven years, Applicant initially told the investigator he had not, but later in the interview disclosed his past drug use without any prodding. “He acknowledged in his hearing testimony that he could have come clean about his past marijuana use much earlier when he completed his [SCAs], but did not.” Decision at 4, citing Tr. at 49-50. In the face of proven acts of falsification by Applicant over a seven-year period spanning two [SCAs] and an initial [background interview] before opening up about his marijuana use, his disclosures, although voluntary when offered, come too late to meet the mitigating requirements of [Mitigating Condition] ¶ 17(a). His laudatory endorsements from coworkers, friends, and family members, while commendable, are not enough to counter his material omissions of his past marijuana use. [Decision at 10.]

DISCUSSION

Applicant’s appeal brief does not challenge any of the Judge’s specific findings of fact. Rather, it challenges the Judge’s analysis of the mitigating conditions1 and whole-person concept. In this regard, for example, he contends his drug involvement is not recent, pointing out he last used marijuana in 2018, emphasizing he had seven clean drug tests since then, and highlighting the Judge stated there were no visible signs he might return to illegal drug use. On the other hand, the Judge noted Applicant’s “persistent withholding of information about his involvement with the drug” in his Guideline H analysis, which was an appropriate factor for him to consider in determining how much weight should be given to Applicant’s testimony regarding his intention to cease using marijuana in the future. Concerning the falsification allegations, Applicant argues that he voluntarily corrected his SCA during his background investigation and his latest omission occurred almost four years ago. He further notes the Judge stated that “he has shown marked improvement in his judgment and maturity level in the three-plus years that he has avoided marijuana use.” Appeal Brief at 8, quoting from Decision at 8. Applicant’s arguments are not persuasive. We find no error in the Judge’s analysis. The presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision. 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. A party’s disagreement with the Judge’s weighing of the evidence, or an 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. 19-01431 at 4 (App. Bd. Mar. 31, 2020). Applicant 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.” 1 Applicant’s brief cites to outdated mitigating conditions. The Appeal Board must apply the current version of the adjudicative guidelines. See, e.g., ISCR Case No. 17-01193 at 3 (App. Bd. Jan. 22, 2019). The current version of the adjudicative guidelines (Senior Executive Agency Directive 4, National Security Adjudicative Guidelines, effective June 8, 2017) is reprinted in Enclosure 2 of the current version of the Directive. It may be downloaded by clicking on the Directive link at https://doha.ogc.osd.mil/Industrial-Security-Program/. The Board has interpreted Applicant’s arguments under the current guidelines.

ORDER

The Decision is AFFIRMED. Signed: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board