CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case ISCR Case No. 22-01256 — CASE

ISCR Case ISCR Case No. 22-01256denied

Case Headnote

ISCR Case No. ISCR Case No. 22-01256

Oct 23, 2023· Hon. Gregg A. Cervi· appeal

Summary

A 32-year-old defense contractor was denied a security clearance under Guideline H (Drug Involvement) due to her ongoing and intentional marijuana use. This use was frequent and acknowledged by the applicant as a violation of federal law.

The applicant stated her intention to continue using marijuana, despite understanding its illegality under federal statutes. This admission was a key factor in the decision.

The judge determined that the applicant failed to present sufficient evidence to mitigate the security concerns arising from her drug involvement, specifically citing Disqualifying Condition AG ¶ 25. Consequently, the security clearance was denied.

Conditions Referenced

Disqualifying

AG ¶ 25raisedIllegal Drug Involvement

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 issuedSep 30, 2022
Answer filed—
Hearing held—
Decision dateOct 23, 2023Decision affirmed on appeal.

Cite For

Ongoing Marijuana Use as a Disqualifying Condition Under Guideline H
Insufficient Evidence to Mitigate Security Concerns Related to Drug Involvement
Emphasis on National Security Interests 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 based on allegations of drug involvement under Guideline H. The Applicant argued that her use of marijuana was for medical purposes and demonstrated reliability. The Board affirmed the denial, finding no harmful error in the Judge's decision.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowRobert B. Blazewick — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline H

What the Board reviewed

No specific harmful error alleged — raised by the applicantRejected
Applicant argued that the evidence established her reliability and trustworthiness.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and that the Applicant's ongoing marijuana use rendered her ineligible for a security clearance.

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

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. 22-01256

)

) Applicant for Security Clearance ) _______________________________________) DATE: October 23, 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 September 30, 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) of the National Security Adjudicative Guidelines (AG) in Appendix A of Security Executive Agent Directive 4 (SEAD 4) (effective June 8, 2017) and DoD Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). On September 18, 2023, Defense Office of Hearings and Appeals Chief Administrative Judge Robert B. Blazewick 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 from 2006 to at least January 2022 and intended to continue using marijuana in the future, and that she purchased marijuana from 2007 to at least October 2019. The Judge found against Applicant on both marijuana allegations. The SOR also alleged that Applicant used cocaine and hallucinogenic mushrooms in 2012 and misused prescription Codeine in 2013, both of which the Judge found favorably for Applicant.

Judge’s Findings of Fact and Analysis Applicant is 32 years old and has been employed as a defense contractor since 2017. She began using marijuana as a teenager when she experienced depression in high school and turned to marijuana and alcohol to self-medicate, finding that the former improves her mood. Prior to her State legalizing medical marijuana, Applicant would occasionally purchase it for personal use and sell small amounts to friends. Applicant obtained a medical prescription for marijuana when it became legal in her State, and stated that it helps her to feel relaxed, optimistic, and peaceful. As of her security clearance hearing, she had last used marijuana that morning. Applicant understood that using marijuana was in violation of Federal law, and she intended to continue to use it. She also stated that her employer has a policy against the use of illegal drugs and that, although the employer occasionally required urinalysis and she expected she would test positive for marijuana, she was not overly concerned. The Judge found that “Applicant’s marijuana use is frequent, ongoing, and she intends to continue her use,” and concluded that she did not provide sufficient evidence to mitigate the security concerns raised by her marijuana involvement. Decision at 5, 6.

DISCUSSION

On appeal, Applicant argues, generally, that the evidence actually established her reliability, trustworthiness, and willingness to comply with laws, rules, and regulations, rather than the opposite. Appeal Brief at 1. For example, she contends that using marijuana to help with depression as a teen, currently using it under a prescription, and intention to continue using it in the future are “the definition of reliability,” and that voluntarily disclosing her history of marijuana use demonstrates her trustworthiness. Id. She also argues that the only law she breaks is “the federal prohibition on a prescription medicine that’s legal in [her] state.” These arguments are without merit. Due to her stated intention to continue using marijuana, which renders her an unlawful user of a controlled substance, Applicant is prohibited from being granted a security clearance. See 50 U.S. Code § 3343(b); SEAD 4, Appendix B. Applicant has not established that the Judge committed harmful error or that she should be granted any relief on appeal. The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision 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: 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