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ISCR 21-01945: Guideline H security clearance appeal, denied (2023) · CASE

ISCR Case 21-01945denied

Case headnote

ISCR Case No. 21-01945

Jan 27, 2023· Hon. Moira D. Modzelewski· appeal

Summary

A defense contractor in his early 40s was denied a security clearance under Guideline H (Drug Involvement) due to a history of significant drug use, including marijuana, cocaine, and heroin. The appeal board upheld the denial, citing the applicant's recent drug use and the absence of a favorable prognosis for his substance abuse.

Disqualifying Condition H1 was raised, indicating a history of drug involvement. While Mitigating Condition H2 was applied, suggesting some efforts toward rehabilitation, these were ultimately insufficient.

The denial was primarily based on the applicant's recent heroin use, which occurred even after he had undergone treatment. Furthermore, the applicant failed to provide sufficient evidence demonstrating a favorable prognosis for his substance abuse diagnosis, leading the board to conclude that the security risks outweighed any mitigating factors.

Conditions referenced

Disqualifying

H1raisedDrug Involvement

Mitigating

H2rejectedSuccessful Completion of a Drug Treatment ProgramThe applicant did not demonstrate a favorable prognosis from a qualified medical professional.

Key rule quoted

“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)

Procedural posture

SOR issuedFeb 25, 2022
Answer filed—
Hearing heldNov 1, 2022
Decision dateJan 27, 2023

Cite for

Recent Drug Involvement as a Disqualifying Factor Under Guideline H
Lack of Favorable Prognosis as a Basis for Denial
The Importance of Individual Case Merits in Security Clearance Decisions

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 drug involvement under Guideline H. The Applicant argued that the Judge mis-weighed evidence regarding the recency of his drug use and the absence of a favorable prognosis. The Board affirmed the Judge's decision, finding no harmful error in the analysis or conclusions reached.

Appealed bythe applicant

Applicant representationAttorney

Judge belowElizabeth M. Matchinski denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline H

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant argued that the Judge failed to consider or mis-weighed significant record evidence regarding the recency of his drug use.
Legal error, raised by the applicantRejected
Applicant contended that the Judge erred by relying on the absence of a favorable prognosis.

Why the Board ruled this way

The Board found that the Judge did not err in concluding that Applicant's misconduct was recent and that the Judge's analysis regarding the absence of a favorable prognosis was relevant to the decision.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionDeference 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. 21-01945

)

) Applicant for Security Clearance ) _______________________________________) Date: January 27, 2023

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Alan V. Edmunds, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On February 25, 2022, 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) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On November 1, 2022, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Elizabeth M. Matchinski denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The Judge’s Findings of Fact and Analysis Applicant is in his early 40sand has worked for a defense contractor since 2017. He served in the National Guard from 2006 until 2014 and held a security clearance for about eight years until it was “taken away.” Decision at 3.

The Judge summarized Applicant’s security-significant conduct in the Analysis. In essence, Applicant used marijuana and cocaine while in college from 2000 until 2004 and continued to use cocaine every few months for about a year after graduation. While in the Guard, he used Percocet occasionally for back pain and purchased it illegally after his prescription ran out. In 2013 he started using heroin two to three times a week. In late 2013, Applicant underwent inpatient treatment for a diagnosis of opiate use disorder, followed by outpatient treatment. In 2014 he was again prescribed Percocet, became addicted, and received a second round of inpatient treatment in January 2015. Applicant entered a long-term rehabilitation program following treatment but left prematurely against medical advice. He abstained from illegal drug use from 2015 until 2019, when he resumed using marijuana for relaxation purposes, continuing until early 2020. In late 2019, he was prescribed an opiate following surgery. When his prescription ran out, he used heroin and a prescription opiate illegally until late 2019. He again relapsed into heroin use for two months before beginning another course of therapy in November 2021. Applicant used marijuana and heroin and misused Percocet after having been granted a security clearance. The Judge found that Applicant made statements that were inconsistent with one another or that were contradicted by other record evidence.1 He executed a statement of intent not to use illegal drugs in the future and enjoys a good reputation for his work performance. Character references assert that he is intent on getting his problems behind him. The Judge concluded that Applicant’s use of cocaine following college was not recent. Accordingly, she resolved that allegation in his favor. However, she entered adverse findings for the remaining allegations, noting that he had resumed heroin use as recently as late 2021, concluding that Applicant’s drug involvement other than cocaine did not happen so long ago that it no longer casts doubt upon his trustworthiness or good judgment. Directive, Encl. 2, App. A ⁋ 26(a). She found that Applicant’s use of marijuana and heroin while holding a clearance was an aggravating factor and that he did not provide evidence of a favorable prognosis regarding his substance abuse diagnosis.

DISCUSSION

Applicant’s appeal brief argues that the Judge failed to consider, or that she mis-weighed, significant record evidence, citing to Hearing Office cases on the question of recency. As we have noted before, Hearing Office cases are not binding either on other Hearing Office Judges or on the Appeal Board. Each case must be decided on its own merits. See, e.g., ISCR Case No. 18-02074 at 2 (App. Bd. Aug. 27, 2019). In the case before us, given the extent of Applicant’s drug involvement and his resumption of such conduct after treatment, we are unable to say that the Judge erred in concluding that Applicant’s misconduct was recent. Applicant argues that the Judge erred by relying on the absence of a favorable prognosis. However, the challenged analysis by the Judge is directly relevant to the applicability of Directive, Encl. 2, App. A ⁋ 26(d), which assigns 1 “He asserted in response to the SOR that he maintained complete abstinence from opioids and illegal drugs during and following his inpatient and outpatient treatment programs from late 2013 until the end of 2015 . . . However, as he disclosed to an [OPM] investigator in September 2017, he became addicted to Percocet prescribed to him for pain in 2014.” Decision at 3. “[Applicant] testified that he left the long-term rehabilitation program prematurely because he wasn’t aware he was going to be there that long and ‘his son’s birthday was coming up.’ . . . Based on the dates of his stay in the program and his older son’s birthdate, it appears that his son had his birthday the day before Applicant was admitted to the program.” Id. at 5.

mitigating effect to an applicant’s completion of a drug treatment program accompanied by a favorable prognosis by a “duly qualified medical professional.” Applicant’s arguments are not sufficient to rebut the presumption that the Judge considered all of the evidence in the record, nor do they demonstrate that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 18-02872 at 3 (App. Bd. Jan. 15, 2020). Applicant has not demonstrated that the Judge committed harmful error. 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