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ISCR 22-02623: Guideline H security clearance appeal (2023) · CASE

ISCR Case 22-02623unknown

Case headnote

ISCR Case No. 22-02623

Oct 12, 2023· Hon. Gregg A. Cervi· appeal

Summary

This case involves a 26-year-old male applicant whose security clearance was challenged under Guideline H (Drug Involvement). The applicant admitted to using various illegal drugs, including marijuana, cocaine, and hallucinogenic substances, but denied selling marijuana.

The Judge initially found against the applicant on all allegations, concluding that he failed to demonstrate a willingness to comply with laws and regulations. This decision was based on disqualifying conditions AG ¶ 25(a) and AG ¶ 25(f).

However, the appeal board remanded the case for further processing. The board identified errors in the Judge's findings, specifically concerning the applicant's drug use after applying for the security clearance. Consequently, there is no final outcome in this case at present.

Conditions referenced

Disqualifying

AG ¶ 25(a)raisedDrug Involvement
AG ¶ 25(f)raisedAny Illegal Drug Use While Granted Access to Classified Information or Holding a Sensitive Position

Key rule quoted

“after applying for a security clearance and being adequately placed on notice that such conduct was inconsistent with holding a security clearance, an applicant who continues to use marijuana demonstrates a disregard for security clearance eligibility standards”
ISCR Case No. 21-02534 at 4 (App. Bd. Feb. 13, 2023)

Procedural posture

SOR issuedFeb 15, 2023
Answer filed—
Hearing heldAug 8, 2023
Decision dateOct 12, 2023Appeal remanded for further processing.

Cite for

Remand Due to Errors in Findings Regarding Drug Use After Application for Clearance
Consideration of the Whole-person Concept in Drug Involvement Cases
Disregard for Security Clearance Standards Due to Continued Drug Use After Notice of Implications.

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

Remanded

The appeal involved a denial of security clearance based on alleged drug involvement. The Applicant challenged the Judge's findings regarding marijuana use after applying for a clearance and the application of disqualifying conditions. The Board remanded the case for the Judge to correct identified errors and issue a new decision.

Appealed bythe applicant

Applicant representationAttorney

Judge belowDarlene D. Lokey Anderson denied the clearance

Decided ona hearing

Guidelines belowGuideline H

What the Board reviewed

Erroneous finding of fact, raised by the applicantError sustained
The Judge erroneously concluded that Applicant continued to use marijuana after applying for a security clearance without supporting evidence.
Decision arbitrary, capricious, or contrary to law, raised by the applicantError sustained
The Judge failed to apply or clarify the application of AG ¶ 25(f) in the decision.

Why the Board ruled this way

The Board found that the Judge made harmful errors in concluding that Applicant used marijuana after applying for a security clearance and in failing to clarify the application of AG ¶ 25(f). These errors likely affected the outcome of the case, necessitating a remand for further processing.

Ignored material evidenceMissing findings

On remand, the judge must

The Judge must correct the identified harmful errors and issue a new decision consistent with the Directive.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decision

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. 22-02623

)

) Applicant for Security Clearance ) _______________________________________) Date: October 12, 2023

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Christopher Snowden, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On February 15, 2023, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision – security concerns raised under Guideline H (Drug Involvement and Substance Misuse) 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). On August 8, 2023, after conducting a hearing, Defense Office of Hearings and Appeals Administrative Judge Darlene D. Lokey Anderson denied Applicant’s security clearance eligibility. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. For reasons stated below, we remand the Judge’s decision. Applicant, who is 26 years old, started his current job in July 2021 and submitted a security clearance application (SCA) in May 2022. The SOR alleged that Applicant purchased and used various illegal drugs, including marijuana from about 2015 to early 2022, cocaine from about 2015 to 2021, hallucinogenic mushrooms from about 2016 to 2021, and LSD in about 2017. It also alleged that he sold marijuana in about 2017 and purchased and used various prescription medications that were not prescribed to him, including Adderall and Vyvanse from about 2016 to 2018, Tramadol and Vicodin in about 2017, and Xanax in about 2015. In responding to the SOR, Applicant denied the sale-of-marijuana allegation and admitted the other allegations with

clarifications. The Judge found that Applicant knew he was violating state and Federal laws when he used marijuana, cocaine, LSD, and hallucinogenic mushrooms. As a favor to a friend, Applicant acted as a middleman in a transaction involving the sale of marijuana in 2017, but he did not receive any money for his participation. Concluding that Applicant failed to demonstrate a willingness to comply with laws, rules, and regulations, the Judge found against him on each of the SOR allegations. On appeal, Applicant challenges the Judge’s conclusion in her analysis that he continued to use marijuana “after applying for a security clearance, in total disregard of DoD policies and Federal law.” Decision at 6. The Judge did not make a finding of fact or cite any evidence supporting that conclusion. The Judge also listed AG ¶ 25(f), “any illegal drug use while granted access to classified information or holding a sensitive position” as one among other disqualifying conditions but did not state that AG ¶ 25(f) or any other disqualifying conditions specifically applied in this case. From our reading of the decision, it is unclear whether the Judge applied AG ¶ 25(f) in this case. Applicant testified that he stopped smoking marijuana in March 2022 when he became aware of its potential security implications and further wanted to change his lifestyle. Tr. 39-41. In his May 2022 SCA, Applicant estimated his most recent use of marijuana was in March 2022 and confirmed that information was correct to the best of his recollection during a subsequent background interview. Government Exhibit (GE) 1 at 74, 88-89 and GE 2 at 16. Based on our review of the record evidence, we are unable to find any evidence supporting a finding or a conclusion that Applicant used marijuana after submitting his SCA. In analyzing this issue, it merits noting that the Appeal Board has “long held that applicants who use marijuana after having been placed on notice of the security significance of such conduct may be lacking in the judgment and reliability expected of those with access to classified information.” ISCR Case No. 20-01772 at 3 (App. Bd. Sep. 14, 2021). We have further stated that, “after applying for a security clearance and being adequately placed on notice that such conduct was inconsistent with holding a security clearance, an applicant who continues to use marijuana demonstrates a disregard for security clearance eligibility standards, and such behavior raises substantial questions about the applicant’s judgment, reliability, and willingness to comply with laws, rules, and regulations.” ISCR Case No. 21-02534 at 4 (App. Bd. Feb. 13, 2023). On the other hand, it also merits noting that Security Executive Agent (SecEA) Clarifying Guidance Concerning Marijuana for Agencies Conducting Adjudications of Persons Proposed for Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position, dated December 21, 2021, provides that prior recreational use of marijuana, which of course constitutes a violation of Federal law, may be relevant in security clearance adjudications but is not determinative. The guidance further emphasizes the application of the “whole-person concept” in analyzing such conduct. See also SecEA Adherence to Federal Laws Prohibiting Marijuana Use, dated October 25, 2014. Considering the above pronouncements, we are unable to conclude that the Judge’s error in finding that Applicant used marijuana after submitting SCA did not likely affect the outcome of the case. Based on the foregoing, we conclude that the best resolution of this case is to remand the case to the Judge to correct the above-identified harmful error and for further processing consistent with the Directive. Upon remand, a Judge is required to issue a new decision. Directive ¶ E3.1.35.

The Board retains no jurisdiction over a remanded decision. However, the Judge’s decision issued after remand may be appealed pursuant to Directive ¶¶ E3.1.28 and E3.130. Other issues in the case are not ripe for consideration at this time.

ORDER

The Judge’s adverse security clearance decision is REMANDED. 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