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ISCR Case 22-00315 — CASE

ISCR Case 22-00315denied

Case Headnote

ISCR Case No. 22-00315

Jan 10, 2023· Hon. Moira D. Modzelewski· appeal

Summary

An applicant, representing himself, was denied a security clearance due to concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The denial stemmed primarily from the applicant's marijuana use after he had already been granted a security clearance. Disqualifying conditions H1 and E2 were raised, while mitigating conditions H2 and E2 were applied.

The judges affirmed the original denial, finding no harmful error in the initial evaluation of the applicant's conduct and its implications for national security. They determined that the applicant's arguments did not demonstrate such error.

Ultimately, the applicant's access to classified information was deemed irrelevant to the national security eligibility determination, and the appeal was denied.

Conditions Referenced

Disqualifying

H1raisedDrug Involvement
E2raisedPersonal Conduct

Mitigating

H2rejectedMitigating CircumstancesThe applicant's candor and forthrightness were acknowledged but did not mitigate the security concerns.
E2appliedPersonal ConductThe judge found favorably for the applicant on some alcohol offenses but not on marijuana use.

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 issuedApr 15, 2022
Answer filed—
Hearing heldOct 3, 2022
Decision dateJan 10, 2023Appeal decision affirmed.

Cite For

Evaluation of Drug Involvement Under Guideline H
Consideration of Personal Conduct Under Guideline E
Standards for National Security Eligibility Determinations

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 concerned the denial of a security clearance based on drug involvement and personal conduct. The applicant argued that the judge did not consider mitigating factors related to his integrity. The Board affirmed the decision, finding no harmful error in the judge's analysis and conclusion.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJohn Bayard Glendon — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline HGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge did not consider the totality of conduct that mitigates and establishes the applicant’s integrity.

Why the Board ruled this way

The Board found that the Judge examined the relevant evidence and articulated a satisfactory explanation for the decision, which was sustainable on the record.

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. 22-00315

)

) Applicant for Security Clearance ) _______________________________________) DEPARTMENT OF DEFENSE DEFENSE LEGAL SERVICES AGENCY DEFENSE OFFICE OF HEARINGS AND APPEALS APPEAL BOARD POST OFFICE BOX 3656 ARLINGTON, VIRGINIA 22203 (703) 696-4759 Date: January 10, 2023

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 15, 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) and Guideline E (Personal Conduct) of DoD Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On October 3, 2022, after the hearing, Administrative Judge John Bayard Glendon denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Under Guideline H, the SOR alleged that Applicant used marijuana with varying frequency from August 2019 to March 2021 and that he used marijuana after being granted a security clearance in November 2018. Under Guideline E, this same conduct was cross-alleged. In addition, the SOR alleged two alcohol offenses and failures to disclose an alcohol offense. The Judge found favorably for Applicant on the Guideline E alcohol offenses and the failures to

disclose. He found adversely to Applicant on the marijuana allegations under both Guideline H and Guideline E. In his appeal brief, Applicant asserts that the Judge “did not consider the totality of conduct that mitigates and establishes the applicant’s integrity.” Appeal Brief at 1. In particular, Applicant highlights that he “freely admitted to the marijuana use” and that his “forthrightness should be considered.” Id. at 2. The fact that an applicant provides full and truthful answers does not preclude the government from evaluating the security significance of the applicant's answers and conduct. See, e.g., ISCR Case No. 99-0519 at 14 (App. Bd. Feb. 23, 2001). Moreover, the Judge discussed Applicant’s candor, as well as the other mitigating factors that Applicant is raising on appeal. Applicant’s arguments are neither sufficient to rebut the presumption that the Judge considered all of the evidence in the record nor enough to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 19-01400 at 2 (App. Bd. Jun. 3, 2020). In his whole-person analysis, the Judge complied with the requirements of the Directive by considering the totality of the evidence in reaching his decision. Applicant also points out that he is required to have a clearance for his position even though he has no access to classified information. An individual’s access to classified material is not a relevant consideration in determining national security eligibility. See, e.g., ISCR Case No. 19 01759 at 3 (App. Bd. Jun. 8, 2020). Applicant has failed to establish that 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 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