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ISCR 22-02225: Guideline H security clearance appeal, denied (2023) · CASE

ISCR Case 22-02225denied

Case headnote

ISCR Case No. 22-02225

Jul 27, 2023· Hon. Gregg A. Cervi· appeal

Summary

A college student's security clearance application was denied under Guideline H (Drug Involvement) due to admitted marijuana use and the potential for future use. The applicant acknowledged using marijuana from January 2018 to September 2022.

During the security clearance process, the applicant also indicated the possibility of future marijuana use in both the application and subsequent interviews. The Administrative Judge determined that the applicant's assurances of abstaining from future use lacked credibility.

Consequently, the security clearance was denied, a decision that was subsequently affirmed on appeal.

Conditions referenced

Disqualifying

HraisedDrug Involvement

Key rule quoted

“[A]fter applying for a security clearance and being adequately placed on notice that such conduct was inconsistent with holding a security clearance, an applicant who continues to use marijuana demonstrates a disregard for security clearance eligibility standards, and such behavior raises substantial questions about the applicant’s judgment, reliability, and willingness to comply with laws, rules, and regulations.”
ISCR Case No. 21-02534 at 4 (App. Bd. Feb. 13, 2023)

Procedural posture

SOR issuedDec 12, 2022
Answer filed—Applicant requested a decision based on the administrative record.
Hearing heldJun 15, 2023
Decision dateJul 27, 2023Appeal affirmed.

Cite for

Denial of Security Clearance Due to Drug Involvement Under Guideline H
Impact of Continued Drug Use on Security Clearance Eligibility
Insufficient Confidence in Applicant's Promises to Abstain From Drug Use

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 did not assert specific errors in the Administrative Judge's decision but expressed concern about the impact on his career. The Board affirmed the decision, finding no harmful error in the Judge's conclusions regarding the applicant's marijuana use.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCharles C. Hale denied the clearance

Decided onthe written record

Guidelines belowGuideline H

What the Board reviewed

No specific harmful error alleged, raised by the applicantRejected
Applicant did not assert any specific harmful error.

Why the Board ruled this way

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

Standard of review applied

No de-novo re-decisionNo new evidence on appealSubstantial-evidence reviewArbitrary-and-capricious review

Appeal Board panel

James F. Duffy (Chair)
Gregg A. Cervi
Allison Marie

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. 22-02225

)

) Applicant for Security Clearance ) _______________________________________) Date: July 27, 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 December 12, 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 DoD Directive 5220.6 (January 2, 1992, as amended) (Directive). Applicant requested a decision based on the administrative record. On June 15, 2023, the Defense Office of Hearings and Appeals 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. Under Guideline H, the SOR alleges that Applicant used marijuana with varying frequency from January 2018 to September 2022. In addition, it alleges that he stated in his March 2022 security clearance application (SCA), his March 2022 interview, and his May 2022 response to interrogatories, that he may use marijuana in the future. In his SOR response, Applicant admitted the SOR allegations. The Judge concluded that Applicant used marijuana to at least September 2022, after he completed his SCA and was interviewed by a DoD background investigator. The Judge correctly noted that the Appeal Board has consistently held:

[A]fter applying for a security clearance and being adequately placed on notice that such conduct was inconsistent with holding a security clearance, an applicant who continues to use marijuana demonstrates a disregard for security clearance eligibility standards, and such behavior raises substantial questions about the applicant’s judgment, reliability, and willingness to comply with laws, rules, and regulations. [Decision at 5, citing ISCR Case No. 21-02534 at 4 (App. Bd. Feb. 13, 2023).] The Judge found against Applicant on both SOR allegations. In general, the Judge concluded that Applicant’s promises to abstain from future marijuana use if he is granted a security clearance does not engender confidence that he has stopped using marijuana or that he will not use it in the future. On appeal, Applicant does not specifically assert the Judge committed any error. Rather, he expressed concern about how the decision affects his career and future employment. He argues that he is a young college student that would benefit from a security clearance in his current and future employment. We are not permitted to consider the adverse impact that an unfavorable decision may have on an applicant. Such an impact is not a relevant consideration in evaluating clearance eligibility. See, e.g., ISCR Case No. 19-02397 at 1-2 (App. Bd. May 6, 2020). Applicant notes that he is taking illegal drug use seriously, has tested negative for drugs, does not intend to use marijuana in the future, and has matured from this experience. The Appeal Board is prohibited from considering new evidence on appeal. Directive ¶ E3.1.29. To the extent that he is contending the Judge mis-weighed or did not consider record evidence, we find no merit in those assertions. None of his 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. 22-01631 at 2 (App. Bd. Feb. 16, 2023). Applicant 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 the 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: Gregg A. Cervi Gregg A. Cervi Administrative Judge Member, Appeal Board Signed: Allison Marie Allison Marie Administrative Judge Member, Appeal Board