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ISCR Case 22-02236 — CASE

ISCR Case 22-02236denied

Case Headnote

ISCR Case No. 22-02236

Jul 31, 2023· Hon. Gregg A. Cervi· appeal

Summary

A woman in her late 50s was denied a security clearance primarily under Guideline E (Personal Conduct) due to her failure to disclose past marijuana use on her 2016 and 2019 security clearance applications. The judge determined that she knowingly engaged in deception, driven by a fear of disqualification, and found a significant likelihood of such deception recurring.

While allegations under Guideline H (Drug Involvement) were found in her favor, and she had a history of sobriety and participation in Narcotics Anonymous, these mitigating factors were insufficient to overcome the concerns regarding her candor. The judge specifically cited Disqualifying Condition AG ¶ 15, while acknowledging Mitigating Conditions AG ¶ 16 and AG ¶ 17.

Ultimately, the judge concluded that the applicant's deliberate misrepresentation of her drug history on official forms presented an unacceptable security risk, leading to the denial of her appeal.

Conditions Referenced

Disqualifying

AG ¶ 15raisedPersonal Conduct

Mitigating

AG ¶ 17rejectedMitigating ConditionsThe judge found that none of the mitigating conditions fully applied to the applicant's falsification.
AG ¶ 16appliedDrug InvolvementThe judge found the applicant's marijuana use was infrequent and occurred under unusual circumstances.

Key Rule Quoted

“The Board’s authority to review a case is limited to matters in which the appealing party has alleged that the judge committed harmful error.”

Procedural Posture

SOR issuedNov 18, 2022
Answer filed—
Hearing heldJun 12, 2023
Decision dateJul 31, 2023Decision affirmed on appeal.

Cite For

Failure to Disclose Drug Use Under Guideline E
Significance of Deception in Security Clearance Cases
Limitations of Appeal Review Regarding New Evidence

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 security clearance based on drug involvement and personal conduct. The Administrative Judge found in favor of the Applicant on drug use but against on personal conduct. The Applicant did not assert any harmful error on appeal, leading to the Board's affirmation of the denial.

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

No specific harmful error alleged — raised by the applicantRejected
Applicant did not assert any harmful error on appeal.

Why the Board ruled this way

The Board found no harmful error alleged by the Applicant and affirmed the Administrative Judge's decision denying the security clearance.

Standard of review applied

No de-novo re-decisionNo new evidence on appeal

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. 22-02236

)

) Applicant for Security Clearance ) _______________________________________) Date: July 31, 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 November 18, 2022, DoD issued a Statement of Reasons (SOR) advising Applicant of the basis of that decision – security concerns raised under Guideline H (Drug Involvement and Substance Misuse) and Guideline E (Personal Conduct) of the National Security Adjudicative Guidelines in Appendix A of Security Executive Agent Directive 4 (effective June 8, 2017) and DoD Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). On June 12, 2023, Defense Office of Hearings and Appeals Administrative Judge John Bayard Glendon denied Applicant’s security clearance eligibility. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Under Guideline H, the SOR alleged that Applicant used marijuana in December 2013 and May 2016 while granted access to classified information. The SOR further alleged under Guideline E that Applicant deliberately failed to disclose the foregoing marijuana use on her 2016 and 2019 security clearance applications (SCAs). The Judge found in favor of Applicant with respect to the Guideline H allegation, but against her on the Guideline E allegations.

DISCUSSION

Applicant is in her late 50s. She was granted a security clearance in 2006, which was renewed in about 2016 and upgraded in 2020. In completing her 2016 SCA, Applicant answered “No” to the question seeking disclosure of any drug use in the prior seven years. Applicant completed another SCA in July 2019, wherein she again denied any reportable drug use in the prior seven years. Applicant affirmed her response about drug use during her September 2019 subject interview. In January 2020, however, Applicant’s sister was interviewed and revealed that Applicant is a member of Narcotics Anonymous (NA). The next day, Applicant contacted her interviewer to disclose that she had lied during the earlier interview. She then disclosed various drug and alcohol use that occurred during her late-teens and 20s, which prompted her to join NA in 1995 and she thereafter remained drug- and alcohol-free for about 17 years. She resumed drinking several times between 2012 and 2019 but has abstained from alcohol since mid-2019. Applicant also used marijuana two times after joining NA, in late 2013 and mid-2016, both while holding a security clearance. She continues to participate regularly in NA. The Judge found that Applicant’s two marijuana uses in 2013 and 2016 were fully mitigated by the passage of time and because the use was infrequent and occurred under unusual circumstances. Turning to the falsification allegations, the Judge found that none of the mitigating conditions fully applied. Applicant’s correction of her omissions from 2016 and 2019 SCAs occurred only after she learned that her sister revealed her NA membership. The Judge found that Applicant is a “mature and accountable adult who knowingly engaged in this deception in connection with two applications because she feared that the truth would disqualify her.” Decision at 10. Accordingly, the likelihood of recurrence is significant, and doubts remain as to Applicant’s present suitability for national security eligibility and a security clearance. On appeal, Applicant makes no assertion of error on the part of the Judge. Rather, she requests reconsideration on the basis that the record evidence and the Judge’s decision do not fully represent her true character and instead only consider her mistakes. Applicant also submits new evidence in the form of four additional character reference letters. 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 matters in which the appealing party has alleged that the judge committed harmful error. Applicant has not alleged any such error, and therefore the Judge’s decision denying Applicant a security clearance is sustainable.

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