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ISCR Case 21-00265 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date7/8/2022
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 21-00265) →
Participants
Applicant Representation: Pro Se
Judge: Moira D. Modzelewski, James E. Moody, James F. Duffy
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline EPersonal Conduct · For Applicant
- Guideline FFinancial Considerations · For Applicant
- Guideline HDrug Involvement & Substance Misuse · Against Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
Finding similar decisions…

ISCR Case 21-00265denied

Case Headnote

ISCR Case No. 21-00265

Jul 8, 2022· Hon. Moira D. Modzelewski· appeal

Summary

A woman in her early thirties, holding a master's degree and a security clearance since 2011, was denied a security clearance due to concerns under Guideline H (Drug Involvement). The applicant had a history of illegal drug use, including methamphetamine and marijuana. While the appeal board acknowledged favorable findings under Guideline E (Personal Conduct) and Guideline F (Financial Considerations), these were insufficient to overcome the drug-related issues.

The denial was primarily based on her past illegal drug use and, critically, her failure to disclose marijuana use during her Enhanced Subject Interview. The judge emphasized that her awareness of holding a security clearance at the time of her drug use significantly heightened the seriousness of her conduct.

Despite some mitigating conditions being applied, the applicant's failure to disclose, combined with her drug involvement, led the appeal board to uphold the denial of her security clearance. The decision highlighted concerns about her judgment and reliability.

Conditions Referenced

Disqualifying

AG ¶ 25raisedDrug Involvement

Mitigating

AG ¶ 26(d)rejectedSuccessful Completion of a Prescribed Drug Treatment ProgramThe applicant's evidence did not satisfy the criteria for satisfactory completion of a drug treatment program.
AG ¶ 26(a)rejectedThe Drug Involvement Was Not RecentThe applicant's drug use occurred while she held a security clearance.

Key Rule Quoted

“An applicant’s use of illegal drugs after having completed a security clearance application or after otherwise having been placed on notice of the incompatibility of drug abuse and clearance eligibility raises questions about his or her judgment, reliability, and willingness to comply with laws, rules, and regulations.”
— ISCR Case No. 17-04198 at 2 (App. Bd. Jan. 15, 2019)

Procedural Posture

SOR issuedApr 30, 2021
Answer filed—
Hearing heldMay 9, 2022
Decision dateJul 8, 2022Decision affirmed on appeal.

Cite For

Evaluation of Drug Involvement Under Guideline H
Impact of Failure to Disclose Drug Use on Security Clearance Eligibility
Consideration of Mitigating Conditions in the Context of Illegal Drug Use

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 a denial of security clearance based on concerns under Guideline H (Drug Involvement and Substance Misuse), Guideline E (Personal Conduct), and Guideline F (Financial Considerations). The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the decision, finding no harmful error in the Judge's analysis.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMark Harvey — denied the clearance

Decided ona hearing

Guidelines belowGuideline HGuideline EGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Judge's findings or analysis, affirming that the decision was sustainable on the record and consistent with national security interests.

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. 21-00265

)

) Applicant for Security Clearance ) _______________________________________)

Date: July 8, 2022

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 April 30, 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), Guideline E (Personal Conduct), and Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On May 9, 2022, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Mark Harvey 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 Guideline E and F are not at issue in this appeal. Consistent with the following, we affirm.

The Judge’s Findings of Fact and Analysis Applicant is in her early 30s. She has worked for her current employer, a DoD contractor, since early 2020. She has earned a master’s degree and has held a security clearance since 2011. The record contains no evidence of security violations by Applicant. Applicant used methamphetamine in 2018 and again in 2019. She did so at a “low point” in her life while under the influence of a toxic relationship. In early 2020, Applicant traveled to a different state from her place of residence, one in which the recreational use of marijuana is lawful. She used marijuana on one occasion while in that state. At the time of her illegal drug use, Applicant held a security clearance. She disclosed her methamphetamine use during the course of an Enhanced Subject Interview (ESI). She did not disclose the marijuana incident during the ESI; rather, she acknowledged it in response to subsequent DOHA interrogatories. She has expressed a willingness to refrain from the use of illegal drugs in the future. The Judge concluded that Applicant’s use of illegal drugs raised concerns under Guideline H. He further concluded that Applicant’s evidence did not mitigate those concerns. He noted that she failed to inform the ESI interviewer about her use of marijuana and that she tested positive for methamphetamine in a drug test performed as a condition of probation for unrelated offenses. He stated that he would consider these two non-alleged matters in evaluating Applicant’s case for mitigation, citing to ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006). He emphasized that Applicant knew she held a clearance at the time of her offenses, and concluded that such knowledge enhanced the seriousness of Applicant’s conduct. Noting Applicant’s evidence that she used the drugs under the influence of others, he stated that such influence could re-emerge in future and that more time must elapse before Applicant can be held to have shown that her drug misuse is truly behind her.

DISCUSSION

Applicant takes issue with the Judge’s analysis of the mitigating conditions. She argues that her drug use was infrequent, that she has moved away from those who had influenced her behavior in the past, that she has passed a drug evaluation during a period of probation, and that her character references show her to be trustworthy. This argument is, in effect, a disagreement with the Judge’s weighing of the evidence. However, a Judge must evaluate the record evidence as a totality, and the presence of some mitigating evidence does not compel a favorable decision. See, e.g., ISCR Case No. 20-02990 at 5 (App. Bd. Jan. 19, 2022). We note, for example, Applicant’s testimony that she underwent a sort of drug evaluation during the course of her probation. “I got permission [to move to a different state] from both probation officers after repeated positive drug tests, and also . . . I spoke to, I guess, a counselor. She, basically, gave me an assessment . . . mental-health-wise . . . and I was allowed to move up here[.]” Tr. at 27. While this was evidence that the Judge was bound to consider, it does not satisfy the criteria set forth in Directive, Encl. 2, App. A ⁋ 26(d): “satisfactory completion of a prescribed drug treatment program . . . and a favorable prognosis by a duly qualified medical professional.” All in all, Applicant’s arguments do not persuade us that the Judge weighed the record evidence in a manner that was arbitrary, capricious, or contrary to law. Neither are these arguments sufficient to rebut

the presumption that the Judge considered all of the evidence in the record. See, e.g., ISCR Case No. 18-02862 at 3 (App. Bd. Nov. 4, 2020). The totality of Applicant’s arguments on appeal demonstrate no harmful error in the Judge’s findings or analysis. An applicant’s use of illegal drugs after having completed a security clearance application or after otherwise having been placed on notice of the incompatibility of drug abuse and clearance eligibility raises questions about his or her judgment, reliability, and willingness to comply with laws, rules, and regulations. See, e.g., ISCR Case No. 17-04198 at 2 (App. Bd. Jan. 15, 2019). The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. 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: 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