ISCR Case No. 21-02285

_______________________________________________ ) In the matter of: )

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ISCR Case No. 21-02285

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) Applicant for Security Clearance ) _______________________________________) Date: November 7, 2022

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.

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