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ISCR 23-01784: Guideline H security clearance appeal, denied (2024) · CASE

ISCR Case 23-01784denied

Case headnote

ISCR Case No. 23-01784

Apr 29, 2024· Hon. Gregg A. Cervi· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guideline H (Drug Involvement) by the Department of Defense. The denial stemmed from the applicant's past marijuana use, specifically noting that this use occurred while he had access to classified information.

The judge determined that the applicant's conduct was inconsistent with national security interests, leading to the denial. This decision was based on the national interest rather than specific clearance levels.

The applicant's appeal was subsequently denied, affirming the judge's initial findings and the denial of the security clearance.

Conditions referenced

Disqualifying

AG ¶ 25raisedDrug 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 issuedAug 16, 2023
Answer filed—
Hearing held—
Decision dateApr 29, 2024Appeal decision

Cite for

Denial of Security Clearance Due to Drug Involvement Under Guideline H
Emphasis on National Interest in Security Clearance Determinations
Clarification That Clearance Levels Do Not Affect Eligibility Assessments

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 concerned the denial of a security clearance based on drug involvement. The Administrative Judge found against the Applicant on one allegation of marijuana use while not having access to classified information and in favor on another. The Applicant appealed, arguing that the Judge's overall determination was unfavorable. The Board affirmed the Judge's decision, finding no harmful error in the ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEdward W. Loughran denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline H

What the Board reviewed

Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant asserted that the Judge erred in the overall unfavorable determination.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the Judge did not err in weighing the evidence or in the overall determination regarding security clearance eligibility.

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

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. 23-01784

)

) 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: April 29, 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 August 16, 2023, 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) 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 February 21, 2024, Defense Office of Hearings and Appeals Administrative Judge Edward W. Loughran denied Applicant’s security clearance eligibility. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. The SOR alleged that Applicant used marijuana while granted access to classified information, from January 2022 to about June 2022; and that he used marijuana from January 2015 to about August 2017. The Judge found against Applicant on the allegation that he used marijuana from January 2022 to about June 2022 (but not while granted access to classified information), and in Applicant’s favor on the remaining SOR allegation. Consistent with the following, we affirm.

On appeal, Applicant does not challenge any of the Judge’s findings of fact but asserts the Judge erred in the “overall unfavorable determination.” Appeal Brief at 1. Applicant focuses on a portion of the Judge’s findings of fact wherein the Judge quotes from Applicant’s witness: “He is praised for his dependability, responsibility, professionalism, loyalty, humility, trustworthiness, work ethic, honesty, reliability, dedication, patriotism, and integrity. He is recommended for a security clearance.” Decision at 2-3. Applicant states in his appeal; “It is my assertion that the intended outcome of Judge Loughran’s ruling was to deny my application for a top-secret security clearance, but not to render an overall unfavorable outcome and revocation of my active secret security clearance.” To the extent that Applicant disagrees with the Judge’s weighing of the evidence, none of his arguments are sufficient to establish the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. Directive ¶ E3.132.3. The opinion of Applicant’s witness is not binding on the Administrative Judge. In DOHA proceedings, the determination of pertinent facts, policies and conclusions as to the allegations contained within an SOR and the ultimate question of whether it is clearly consistent with the national interest to grant or deny a security clearance rests solely with the Administrative Judge. Department of the Navy v. Egan, 484 U.S. 518, 527 (1988). Moreover, to the extent that Applicant believes the Judge denied his top-secret clearance, but not his secret clearance, he misunderstands the security eligibility process and misreads the decision. The Judge ruled on Applicant’s security eligibility, not a particular clearance level. The level of clearance currently held, or the level of clearance applied for, do not affect the Judge's analysis or the Board's review. Directive ¶ 3.2 makes no distinction concerning basic clearance levels in its procedures for deciding whether access to classified information is clearly in the national interest. ISCR Case No. 05-11366 at 3 (App. Bd. Jan. 12, 2007). Possession 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. 03-24144 at 6 (App. Bd. Dec. 6, 2005). Applicant has failed to establish that the Judge committed any harmful error or that he should be granted any relief on appeal. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision, which 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: 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