CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 22-01014 — CASE

ISCR Case 22-01014denied

Case Headnote

ISCR Case No. 22-01014

Jun 9, 2023· Hon. Gregg A. Cervi· appeal

Summary

A security clearance applicant, represented by counsel, was denied a clearance under Guideline H (Drug Involvement). The applicant admitted to using marijuana from November 2015 to July 2021, including after being granted access to classified information. Additionally, the applicant was arrested for marijuana possession in September 2020.

The denial was based on Disqualifying Condition H.1, which addresses drug involvement. The applicant failed to provide any mitigating evidence to counter the allegations of drug use.

Ultimately, the judges affirmed the denial, finding no harmful error in the original decision. They noted the applicant's admitted post-access marijuana use and the lack of mitigating evidence, as well as ongoing association with marijuana users, as key factors in upholding the denial.

Conditions Referenced

Disqualifying

H.1raisedDrug Involvement

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 issuedJul 8, 2022
Answer filed—
Hearing heldJan 13, 2023
Decision dateJun 9, 2023Appeal decision

Cite For

Denial of Security Clearance Due to Drug Involvement Under Guideline H
Affirmation of Denial Based on Lack of Mitigating Evidence
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. The applicant's counsel did not challenge the findings of fact but argued that the Judge failed to consider all evidence and apply mitigating conditions. The Board affirmed the decision, finding no harmful error in the Judge's analysis.

Appealed bythe applicant

Applicant representationAttorney

Judge belowCharles C. Hale — denied the clearance

Decided onthe written record

Guidelines belowGuideline H

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
The Judge erred in failing to comply with the provisions in Executive Order 10865 and the Directive by not considering all the evidence and by not properly applying the mitigating conditions and whole-person concept.

Why the Board ruled this way

The Board found no harmful error in the Judge's decision, which was supported by substantial evidence and articulated a satisfactory explanation for the denial of the security clearance.

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
Moira Modzelewski
Gregg A. Cervi

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. 22-01014

)

) 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: June 9, 2023

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On July 8, 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 the National Security Adjudicative Guidelines (AG) in Appendix A of Security Executive Agent Directive 4 (effective Jun. 8, 2017) and Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On January 13, 2023, after considering the record, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Charles C. Hale denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The SOR alleged that Applicant used marijuana with varying frequency from about November 2015 to about July 2021, including after he was granted access to classified information in about April 2020; and that he was arrested for possession of marijuana in about September 2020. In responding to the SOR, Applicant admitted both allegations without providing any mitigating evidence. He submitted no response to the Government’s File of Relevant Material. Noting that

Applicant used marijuana after receiving his security clearance and that he continues to associate with individuals who use marijuana, the Judge indicated that he was not convinced that Applicant would abstain from using that substance once the pressure of qualifying for a security clearance was removed and concluded that Applicant did not mitigate the alleged security concerns. On appeal, Applicant’s Counsel does not challenge any of the Judge’s findings of fact. Rather, he contends that the Judge erred in failing to comply with the provisions in Executive Order 10865 and the Directive by not considering all the evidence and by not properly applying the mitigating conditions and whole-person concept. For example, Applicant’s Counsel is apparently arguing that the Judge did not properly consider either Applicant’s age and maturity at the time of his last use of marijuana or his subsequent abstinence for almost two years. Appeal Brief at 10. The Judge, however, made pertinent findings about those matters. None of Counsel’s arguments are enough to rebut the presumption that the Judge considered all of the record evidence or to demonstrate the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 20-02355 at 2 (App. Bd. Jun. 2, 2023). In his brief, Applicant’s Counsel relies on hearing-level decisions in unrelated Guideline H cases to argue the Judge erred in his analysis of this case. His reliance on hearing-level decisions is misplaced because each case must be judged on its own merits. AG ¶ 2(b). As the Board has previously stated, how particular fact scenarios were decided at the hearing level in other cases is generally not a relevant consideration in our review of a case. The Hearing Office decisions that Applicant’s Counsel cites have no direct relationship or unique link to Applicant’s case that would make them relevant here. See, e.g., ISCR Case No. 20-02355 at 2. Applicant’s brief fails to establish that the Judge committed any harmful error. See Directive ¶ E3.1.32. 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 AG ¶ 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 Chair, Appeal Board Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Member, Appeal Board Signed: Gregg A. Cervi Gregg A. Cervi Administrative Judge Member, Appeal Board