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ISCR Case 20-00768 — CASE

ISCR Case 20-00768denied

Case Headnote

ISCR Case No. 20-00768

Jun 3, 2024· Hon. Gregg A. Cervi· appeal

Summary

An applicant, represented by counsel, was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The denial stemmed from the applicant's extensive marijuana use, which occurred from 1978 to 2018, including periods when the applicant had access to classified information.

The appeal board upheld the denial, affirming that the judge's findings were consistent with national security interests. Disqualifying conditions AG E2.a and AG H1 were raised, while mitigating conditions AG E2.c and AG H2 were applied. However, the board found that the judge adequately addressed the applicant's circumstances and did not err in weighing the evidence.

The applicant's argument that a prior clearance should prevent denial (estoppel) was rejected, as past conduct can be re-evaluated. The extensive history of marijuana use raised significant security concerns, ultimately leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG E2.araisedDeliberate Omission, Concealment, or Falsification of Relevant Facts From Any Personnel Security Questionnaire or During the Security Clearance Process.
AG H1raisedIllegal Use of Controlled Substances, Including Marijuana, at Any Time.

Mitigating

AG E2.crejectedThe Offense Is Not Recent and There Is No Evidence of a Current Problem.The applicant's drug use spanned several decades, undermining the applicability of this condition.
AG H2rejectedThe Individual Has Successfully Completed a Treatment Program for Substance Abuse.No evidence was presented that the applicant completed any treatment program.

Key Rule Quoted

“"Prior security clearance adjudications and the granting of clearances for the Applicant have no bearing on the legal sufficiency of the Judge’s adverse clearance decision here."”
— ISCR Case No. 07-00260 at 3 (App. Bd. Jan. 24, 2008)

Procedural Posture

SOR issuedAug 20, 2021
Answer filed—
Hearing heldOct 26, 2023
Decision dateJun 3, 2024Decision affirmed on appeal.

Cite For

Denial of Clearance Due to Extensive Drug Involvement Under Guideline H
Rejection of Estoppel Arguments Based on Prior Clearance
The Principle That Past Conduct Can Be Reconsidered in Security Clearance 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 involved a denial of security clearance for the Applicant based on allegations of drug involvement and personal conduct. The Applicant did not challenge the factual findings but argued that the Judge did not weigh the evidence appropriately and claimed estoppel based on prior clearance. The Board affirmed the decision, finding no harmful error in the Judge's ruling.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRoss D. Hyams — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline H

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge did not appropriately weigh the facts relative to the Mitigating Conditions.
Prior favorable clearance should bind — raised by the applicantRejected
Applicant asserted that the Government is estopped from denying a clearance based on his drug use because it was previously known to the Government.

Why the Board ruled this way

The Board found that the Judge adequately addressed Applicant’s circumstances and that the arguments presented did not demonstrate harmful error. The Judge's conclusions were supported by substantial evidence and articulated a satisfactory explanation for the decision.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Moira Modzelewski — Chair
Gregg A. Cervi
James B. Norman

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. 20-00768

)

) 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 3, 2024

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Brian Farrell, Esq., Department Counsel FOR APPLICANT Daniel F. Aldridge, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On August 20, 2021, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision – security concerns raised under Guidelines E (Personal Conduct) and H (Drug Involvement) of the National Security Adjudicative Guidelines (AG) of Security Executive Agent Directive 4 (effective June 8, 2017) and DoD Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing, which was held on October 26, 2023. On March 14, 2024, Defense Office of Hearings and Appeals Administrative Judge Ross D. Hyams concluded that it is not clearly consistent with the national interest to grant Applicant’s security clearance eligibility. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Under Guidelines E and H, the SOR alleged that Applicant used marijuana with varying frequency between 1978 and 2018, at times while having been granted access to classified information. The Administrative Judge found against Applicant as to each of the allegations. On appeal, Applicant does not challenge the Judge’s factual findings, but rather argues that the Judge did not appropriately weigh those facts relative to the Mitigating Conditions. He also asserts that the Government is estopped from denying Applicant a clearance based upon his drug use because

his use was previously known to the Government and he had been granted access to classified information in the past. We find that estoppel does not apply in this situation and the Judge adequately addressed Applicant’s circumstances in his decision. To the extent that an applicant has been granted eligibility for access to classified information in the past, neither estoppel nor reciprocity precludes revocation or denial of a security clearance. “[P]ossession of a previously granted clearance does not give rise to any right or vested interest, nor does any favorable clearance decision preclude the Government from reassessing a person's security eligibility in light of current circumstances." ISCR Case No. 05-11366 at 3 (App. Bd. Jan. 12, 2007). It is well established that there is no right to a security clearance, nor is there a presumption in favor of granting or continuing a security clearance. “Prior security clearance adjudications and the granting of clearances for the Applicant have no bearing on the legal sufficiency of the Judge’s adverse clearance decision here.” ISCR Case No. 07-00260 at 3 (App. Bd. Jan. 24, 2008) (internal citations omitted). Past conduct may be considered "even where the past conduct was considered in a prior favorable adjudication.” ISCR Case No. 04-12742 at 4 (App. Bd. Feb. 25, 2011). The Government simply cannot be estopped from protecting classified information and reviewing the facts anew. E.g. ISCR Case No. 94-0966 at 3 (App. Bd. July 21, 1995). Moreover, the Board is in the position of reviewing only the instant case, not any prior adjudication of Applicant's security clearance eligibility. ISCR Case No. 09-07066 at 4 (July 26, 2011). The remainder of Applicant’s arguments advocate for an alternative weighing of the evidence. An applicant’s disagreement with the judge’s weighing of the evidence or an ability to argue for a different interpretation of the evidence is not sufficient to demonstrate that the judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. E.g., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). Moreover, Applicant’s arguments fail to rebut the presumption that the Judge considered all of the record evidence. The mere presence of some favorable or mitigating evidence does not require the Judge to make an overall favorable determination in the face of disqualifying conduct such as Applicant’s. See ISCR Case No. 04-08975 at 2 (App. Bd. Aug. 4, 2006). We have considered the entirety of the arguments contained in Applicant’s appeal brief. The record supports a conclusion that the Judge examined the relevant evidence and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). His conclusions and adverse decision are 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). “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.” AG ¶2(b).

ORDER

The decision is AFFIRMED. Signed: Moira Modzelewski Moira Modzelewski Administrative Judge Chair, Appeal Board Signed: Gregg A. Cervi Gregg A. Cervi Administrative Judge Member, Appeal Board Signed: James B. Norman James B. Norman Administrative Judge Member, Appeal Board