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ISCR Case 21-01106 — CASE

ISCR Case 21-01106denied

Case Headnote

ISCR Case No. 21-01106

Nov 3, 2022· Hon. Moira D. Modzelewski· appeal

Summary

A security clearance applicant, representing himself, was denied clearance under Guideline H (Drug Involvement and Substance Misuse) and Guideline E (Personal Conduct). The denial stemmed from a history of illegal drug use and ongoing associations with individuals who use illegal drugs.

The adjudicators found that the applicant's history of illegal drug use was too recent and diverse to demonstrate sufficient mitigation. Furthermore, the applicant failed to establish that his continued associations with illegal drug users had been mitigated.

Upon appeal, the denial was upheld. The judges found no harmful error in the original decision, affirming that the applicant's recent and varied drug use, coupled with unmitigated associations, warranted the denial of his security clearance.

Conditions Referenced

Disqualifying

Guideline HraisedDrug Involvement and Substance Misuse
Guideline EraisedPersonal Conduct

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 issuedSep 28, 2021
Answer filed—
Hearing heldAug 31, 2022
Decision dateNov 3, 2022

Cite For

Insufficient Mitigation of Recent Drug Use Under Guideline H
Failure to Establish Mitigating Conditions Related to Personal Conduct Under Guideline E
Affirmation of the General Standard for Security Clearance Decisions Regarding National Security

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 a security clearance based on allegations of drug involvement and personal conduct. The Applicant argued that the Judge mischaracterized his trustworthiness and did not apply the whole-person concept accurately. The Board affirmed the decision, finding no harmful error in the Judge's ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowBraden M. Murphy — denied the clearance

Decided onthe written record

Guidelines belowGuideline HGuideline E

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant contended that the Judge did not accurately apply the whole-person concept and mischaracterized his trustworthiness.

Why the Board ruled this way

The Board found that the Judge's decision was sustainable on the record and that the Applicant failed to establish any harmful error. The Judge articulated a satisfactory explanation for the decision, which was consistent with national security standards.

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
Jennifer I. Goldstein
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. 21-01106

)

) Applicant for Security Clearance ) _______________________________________) Date: November 3, 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 September 28, 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) and Guideline E (Personal Conduct) of DoD Directive 5220.6 (January 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On August 31, 2022, after consideration of the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Braden M. Murphy denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. For reasons stated below, we affirm the decision. Under Guidelines H and E, the SOR alleged that Applicant used marijuana, MDMA, cocaine, and LSD with varying frequency until late 2020, including while granted access to classified information, and that he continued to associate with others involved in drug use. Because the Government failed to prove Applicant used illegal drugs while possessing a security clearance, the Judge concluded that Disqualifying Condition 25(f), any illegal drug while granted access to classified information or while holding a sensitive position, was not established. The Judge further concluded Applicant’s continued association with illegal drug users was not

established. In finding against Applicant on each of the illegal drug use allegations, the Judge stated: With the exception of his marijuana use in 2009, all of Applicant’s subsequent use of illegal drugs came as a mature adult, in his early 30s. He was employed by a defense contractor at the time (his current employer) whether or not he held a clearance at the time, or had actual access to classified information. Regardless, he should have known better. Applicant’s history of illegal drug use is too recent and too varied to provide much evidence of mitigation. [Decision at 8.] In his appeal brief, Applicant argues he had no access to classified information when he used illegal drugs. There is no need to address this argument because, as noted above, the Judge concluded Disqualifying Condition 25(f) was not established. From a plain reading of the decision, it is apparent the Judge disregarded the phrase “while granted access to classified information” in finding against Applicant on the drug use allegations. Applicant contends that the Judge did not accurately apply the whole-person concept and mischaracterized his trustworthiness. These arguments, however, are not sufficient to demonstrate the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Directive ¶ E3.1.32.3. 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.”

ORDER

The decision is AFFIRMED. Signed: James F. Duffy James F. Duffy Administrative Judge Chairperson, Appeal Board Signed: Jennifer I. Goldstein Jennifer I. Goldstein Administrative Judge Member, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board