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ISCR 21-02285: Guideline G security clearance appeal, denied (2022) · CASE

ISCR Case 21-02285denied

Case headnote

ISCR Case No. 21-02285

Nov 7, 2022· Hon. Moira D. Modzelewski· appeal

Summary

An applicant, representing himself, was denied a security clearance due to concerns under Guideline G (Alcohol Consumption) and Guideline H (Drug Involvement). The denial was based on the applicant's illegal drug use, specifically marijuana.

Although the applicant claimed to have ceased using medical cannabis, he provided no evidence to substantiate this assertion. The judge determined that the applicant's illegal drug use was not mitigated by any conditions. Furthermore, the use of marijuana, while legal in the applicant's state, remains a federal crime and is considered inconsistent with holding a security clearance.

The appeal board affirmed the denial, citing the applicant's illegal drug use as a barrier to holding a security clearance. The disqualifying conditions raised were AG ¶ 25 and AG ¶ 26.

Conditions referenced

Disqualifying

AG ¶ 25raisedDrug Involvement
AG ¶ 26appliedIllegal Drug Use

Key rule quoted

“The Board’s authority to review a case is limited to cases in which the appealing party has alleged the Judge committed harmful error.”

Procedural posture

SOR issuedNov 30, 2021
Answer filed—
Hearing held—Applicant requested a decision on the written record.
Decision dateNov 7, 2022Appeal affirmed the judge's decision.

Cite for

Affirmation of Denial Based on Illegal Drug Use Under Guideline H
Lack of Evidence to Support Claims of Cessation of Drug Use
Limitations of Appeal Review Process Regarding New Evidence

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 concerns under Guideline G and Guideline H. The Applicant argued that the Government incorrectly assumed he continued using medical cannabis. The Board affirmed the denial, finding no harmful error in the Administrative Judge's decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline GGuideline H

What the Board reviewed

No specific harmful error alleged, raised by the applicantRejected
The Government has incorrectly assumed that I have continued my use of medical cannabis.

Why the Board ruled this way

The Board found no harmful error alleged by the Applicant and upheld the Administrative Judge's decision based on the evidence presented.

Standard of review applied

No de-novo re-decisionNo new evidence on appealHarmful-error gatekeeper

Appeal Board panel

James B. 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. 21-02285

)

) Applicant for Security Clearance ) _______________________________________) Date: November 7, 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 November 30, 2021, DoD issued a statement of reasons (SOR) advising Applicant of the basis of that decision—security concerns raised under Guideline G (Alcohol Consumption) and 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. The Government’s written case was submitted in March 2022, and a copy of the file of relevant material (FORM) was provided to Applicant. Applicant was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the security concerns, but he did not respond to the FORM. On July 8, 2022, after consideration of the record, DOHA Administrative Judge Edward W. Loughran denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The Judge found favorably for Applicant on the Guideline G allegations and on two Guideline H allegations. He found against Applicant on three Guideline H allegations, including

an allegation that Applicant stated his intent to use marijuana in the future on his security clearance application, during his clearance interview, and in his response to DoD interrogatories. During the security clearance process, Applicant reported that he began using medical marijuana in March 2020 as an alternative to opioids and that he did so on the advice of his pain- management doctor. He used marijuana only for medicinal purposes. In his response to the SOR, Applicant stated, “I am willing to work and find an alternative medical solution, but until that medical solution is found, I’m going to continue to use the medical solution that works, as it is legal in my state to do so.” Decision at 2–3, quoting SOR Response. As the Judge noted, “[Applicant] did not respond to the FORM, so additional information is not available.” Id. at 3. Applicant did not violate any state law when he possessed and used marijuana for medicinal purposes. . . . However, marijuana possession is still a federal crime, and inconsistent with holding a security clearance. None of the mitigating conditions are applicable, and Applicant’s illegal drug use is not mitigated. [Decision at 6.] On appeal, Applicant raises only one issue: “The Government has incorrectly assumed that I have continued my use of medical cannabis.” Appeal Brief at 1. We interpret this statement to mean that Applicant stopped using marijuana at some point after he responded to the SOR, but we find no evidence in the record to support that contention. We also find no error in the Judge’s conclusion that Applicant is barred from holding a security clearance under 50 U.S.C. § 3343(b) for being an unlawful user of a controlled substance. The Appeal Board does not review cases de novo and is prohibited from considering new evidence on appeal. Directive E3.1.29. The Board’s authority to review a case is limited to cases in which the appealing party has alleged the Judge committed harmful error. Because Applicant has not made such an allegation of error, the decision of the Judge denying Applicant a security clearance is sustainable.

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