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ISCR Case ISCR Case No. 21-02297 — CASE

ISCR Case ISCR Case No. 21-02297denied

Case Headnote

ISCR Case No. ISCR Case No. 21-02297

Feb 15, 2024· Hon. James B. Norman· appeal

Summary

A man in his late 30s was denied a security clearance under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The denial stemmed primarily from his admitted, ongoing marijuana use, which included use just days before his hearing. He also falsified information on his security clearance application concerning his drug use and past arrests.

Further complicating his case was a history of drug-related arrests and disciplinary actions during his military service. While the applicant claimed a prescription for medical marijuana, the appeal board upheld the denial, prioritizing national security concerns over personal conduct.

Disqualifying conditions AG ¶ 15 and AG ¶ 25 were raised, while mitigating conditions AG ¶ 20 and AG ¶ 17 were applied. Ultimately, the board concluded that the applicant's actions and history presented an unacceptable security risk, leading to the denial of his clearance.

Conditions Referenced

Disqualifying

AG ¶ 15raisedPersonal Conduct
AG ¶ 25raisedDrug Involvement

Mitigating

AG ¶ 20rejectedMitigating Conditions for Drug InvolvementThe judge concluded that medical marijuana does not assign special status under the adjudicative guidelines.
AG ¶ 17rejectedMitigating Conditions for Personal ConductThe applicant's admissions and history did not mitigate the concerns.

Key Rule Quoted

“"Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security."”
— AG ¶ 2(b)

Procedural Posture

SOR issuedApr 11, 2022
Answer filed—
Hearing held—
Decision dateFeb 15, 2024Appeal decision affirmed.

Cite For

Denial of Security Clearance Due to Ongoing Drug Use and Falsification of Application Information
Impact of Medical Marijuana Prescriptions on Security Clearance Eligibility
Emphasis on National Security in 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 security clearance for the Applicant based on concerns under Guidelines E and H. The Applicant did not assert any harmful error on appeal, leading the Board to affirm the Administrative Judge's decision denying the clearance.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowPaul J. Mason — denied the clearance

Decided ona hearing

Guidelines belowGuideline EGuideline H

What the Board reviewed

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

Why the Board ruled this way

The Board found no harmful error alleged by the Applicant and affirmed the Judge's decision based on the existing record.

Standard of review applied

No de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Moira Modzelewski — Chair
Allison Marie
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. 21-02297

)

) 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: February 15, 2024

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Julie R. Mendez, Esq., Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On April 11, 2022, DoD issued a Statement of Reasons (SOR) advising Applicant of the basis of that decision – security concerns raised under Guidelines E (Personal Conduct) and H (Drug Involvement) of the National Security Adjudicative Guidelines (AG) 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 November 22, 2023, Defense Office of Hearings and Appeals Administrative Judge Paul J. Mason denied Applicant’s security clearance eligibility. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant is in his late 30s. He is unmarried and has a daughter from a current relationship and a son from a previous relationship. In response to the SOR and at the hearing, Applicant admitted to having used marijuana from 2002 until the present, including three days prior to the hearing. Tr. at 20, 45. He also used marijuana while granted interim eligibility to access classified information from 2019 to 2022. He was arrested twice on civilian drug charges in 2010 and 2012, and also twice tested positive for marijuana in 2005 and 2008 while on active duty in the military, which resulted in disciplinary action and led to his administrative separation. Tr. at 52. He

described himself as “an avid user” of marijuana. Tr. at 56. Applicant also admitted to intentionally falsifying his response to questions regarding drug use and arrests when filling out his security clearance application. Additionally, he admitted that, while in the Army, he was found guilty of Forced Sodomy, Indecent Acts Upon a Child, Making a False Statement, and Conspiracy. The Judge found against Applicant on all of the foregoing SOR allegations. On appeal, Applicant made no assertion of harmful error on the part of the Judge although he asked “[d]id the court take my prescriptions in to (sic) consideration . . . ?” At the hearing Applicant asserted that, although most of his marijuana use had been illegal, he obtained a prescription for medical marijuana in 2022. Tr. at 21. The Judge left the record open to allow him to enter the prescription into evidence. In his decision, the Judge specifically acknowledged receiving the document but concluded that “[m]edical marijuana assigns no special status under the adjudicative guidelines.” Decision at 2, 11 (citing ISCR Case No. 20-02794 at 5 (App. Bd. Feb. 1, 2022)). 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 cases in which the appealing party has alleged the judge committed harmful error. Because Applicant has not made such an allegation of error, the decision of the Judge denying Applicant a security clearance 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). “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: Allison Marie Allison Marie Administrative Judge Member, Appeal Board Signed: James B. Norman James B. Norman Administrative Judge Member, Appeal Board