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ISCR 23-02035: Guideline H security clearance appeal, denied (2024) · CASE

ISCR Case 23-02035denied

Case headnote

ISCR Case No. 23-02035

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

Summary

An applicant, represented by counsel, was denied a security clearance under Guideline H (Drug Involvement) due to admitted marijuana use. The applicant acknowledged using marijuana while having access to classified information.

Despite the applicant's arguments for mitigation, the Administrative Judge rejected these claims. This decision was subsequently affirmed by the Appeal Board.

The denial was based on the applicant's admitted drug involvement and the Appeal Board's emphasis on national security considerations, which ultimately outweighed the presented mitigating factors.

Conditions referenced

Disqualifying

HraisedDrug Involvement

Procedural posture

Decision DateAug 29, 2024

Cite for

Denial of Security Clearance Due to Drug Involvement Under Guideline H
Importance of National Security Considerations in Clearance Decisions
Impact of Admitted Drug Use on Security Clearance Eligibility

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 in ISCR Case No. 23-02035 was brought by the Applicant after the Administrative Judge denied his security clearance due to drug involvement. The Applicant did not challenge the Judge's factual findings but argued that the Judge did not appropriately weigh the mitigating factors. The Board affirmed the Judge's decision, finding that the Judge's conclusions were reasonable and supported by the evidence.

Appealed bythe applicant

Applicant representationAttorney

Judge belowEric H. Borgstrom denied the clearance

Decided ona hearing

Guidelines belowGuideline H

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the applicantRejected
Applicant argued that the Judge did not appropriately weigh the facts relative to the mitigating conditions.
Decision arbitrary, capricious, or contrary to law, raised by the applicantRejected
Applicant contended that the Judge's decision was arbitrary and capricious.
No specific harmful error alleged, raised by the applicantNot reached
Applicant did not allege any specific harmful error.

Why the Board ruled this way

The Board found that the Judge adequately addressed Applicant’s circumstances and reasonably concluded that Applicant’s drug use while having access to classified information was unmitigated. The Board also noted that the level of clearance held does not affect the Judge’s analysis or the Board’s review.

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. 23-02035

)

) 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: August 29, 2024

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Julie R. Mendez, Esq., Chief Department Counsel FOR APPLICANT Samir Nakhleh, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On November 14, 2023, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision – security concerns raised under Guideline H (Drug Involvement) of the National Security Adjudicative Guidelines (AG) of Security Executive Agent Directive 4 (effective June 8, 2017) (SEAD 4) and DoD Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing which was held on May 6, 2024. On June 28, 2024, Defense Office of Hearings and Appeals Administrative Judge Eric H. Borgstrom 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. The SOR’s two allegations under Guidelines H alleged that Applicant had used marijuana on various occasions between December 2021 and December 2022, including while having been granted access to classified information. In his response to the SOR, Applicant admitted the allegations and provided amplifying information. The Administrative Judge found against Applicant on both allegations.

On appeal, Applicant does not challenge the Judge’s factual findings, but rather argues that the Judge did not appropriately weigh the facts relative to the mitigating conditions. However, the Judge adequately addressed Applicant’s circumstances in his decision and reasonably concluded that Applicant’s drug use while having access to classified information was unmitigated despite his cessation 17 months prior to the hearing. Applicant also argues that he should retain his current eligibility for access to secret-level information even if the Judge’s decision is affirmed. However, the level of clearance currently held or applied for does 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. See 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). Additionally, Applicant cites to language in Appendix C of the SEAD 4, apparently asserting that he should be granted a waiver despite the unmitigated disqualifying security concerns. A waiver was not sought at the hearing and nothing in the record supports a conclusion that the Judge erred in not granting one. See ISCR Case No. 23-00521 at 6 (App. Bd. Apr. 11, 2024). Finally, Applicant cites to SEAD 4 and suggests that he be allowed to “keep working with access to classified information with various conditions or security measures.” Again, a conditional clearance was not sought at the hearing and nothing in the record supports a conclusion that the Judge erred in not granting one. Although Appendix C to SEAD 4 provides authority to grant conditional clearance eligibility, we decline to do so in this instance. In essence, Applicant is advocating 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 in ISCR Case No. 23-02035 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