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ISCR Case 22-00342 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date1/18/2024
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 22-00342) →
Participants
Applicant Representation: Pro Se
Judge: Gregg A. Cervi, Moira D. Modzelewski, Allison Marie
Government Counsel: Julie R. Mendez
Guidelines Evaluated
- Guideline EPersonal Conduct · For Applicant
- Guideline FFinancial Considerations · For Applicant
- Guideline HDrug Involvement & Substance Misuse · Against Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
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ISCR Case 22-00342denied

Case Headnote

ISCR Case No. 22-00342

Jan 18, 2024· Hon. Gregg A. Cervi· appeal

Summary

The applicant, representing himself, was denied a security clearance primarily due to concerns under Guideline H (Drug Involvement). While the judge found favorably for the applicant under Guideline E (Personal Conduct) and Guideline F (Financial Considerations), the issues related to drug use were deemed disqualifying.

Specifically, the applicant used marijuana while already holding a security clearance and having access to classified information. This behavior was cited as a reflection of poor judgment, raising significant concerns about trustworthiness.

The denial was further supported by the judge's assessment that the applicant's history of marijuana use and continued association with other users indicated a high likelihood of future recurrence, leading to the ultimate decision to deny the appeal.

Conditions Referenced

Disqualifying

H1raisedDrug Involvement

Mitigating

E2appliedThe Behavior Was Not RecentThe applicant credibly stated he stopped using marijuana in October 2020.
F3appliedThe Applicant Has Taken Positive Steps to Resolve Financial IssuesThe applicant was enrolled in a debt resolution program.

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 issuedApr 14, 2022
Answer filed—
Hearing held—
Decision dateJan 18, 2024Decision affirmed on appeal.

Cite For

Poor Judgment Regarding Drug Use Under Guideline H
Trustworthiness Concerns Due to Drug Involvement
Financial Considerations Under Guideline F

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 concerns under Guidelines H, E, and F. The Administrative Judge found against the applicant on Guideline H but in favor on Guidelines E and F. The applicant appealed, alleging that the Judge made unfounded assumptions regarding the risk of recurrence of drug use. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowEric C. Price — denied the clearance (split findings)

Decided ona hearing

Guidelines belowGuideline HGuideline EGuideline F

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant alleged that the Judge made several unfounded assumptions regarding the risk of recurrence.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for the denial of the security clearance, which was consistent with national security interests.

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
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. 22-00342 ) ) 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 (7 03) 696-4759 Date: January 18, 2024

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Julie R. Mendez, Esq., Deputy Chief Department Counsel FOR APPLICANT Pro se The Department of Defense (DoD) declined to grant Applicant a security clearance. On April 14, 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), Guideline E (Personal Conduct), and Guideline F (Financial Considerations) 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 1, 2023, Defense Office of Hearings and Appeals Administrative Judge Eric C. Price denied Applicant’s security clearance eligibility. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Under Guideline H, the SOR alleged that Applicant used marijuana from about November 2017 to about October 2020, that he purchased marijuana in about November 2019, and that he used and purchased from about November 2017 to about October 2020 while granted access to classified information. Under Guideline E, Applicant’s use and purchase of marijuana while granted access was cross-alleged. Under Guideline F, the SOR alleged that Applicant had

approximately $42,800 in delinquent debt and was enrolled in a debt resolution program. Applicant admitted all but the Guideline E allegation in responding to the SOR. The Judge found favorably for Applicant on the Guideline E and Guideline F allegations, but he resolved the Guideline H allegations adversely to Applicant. The Judge acknowledged that Applicant used marijuana only during visits to a state where marijuana was legal under state law and that Applicant credibly stated that he stopped using in October 2020. The Judge noted, however, that Applicant used marijuana for several years while holding a security clearance and with access to classified information and “with knowledge that its use was prohibited under federal law and DoD policy.” Decision at 7. These circumstances, the Judge concluded, “reflect poor judgment and raise questions as to his trustworthiness.” Id. at 8. Moreover, the Judge was not convinced that recurrence was unlikely because Applicant used marijuana more than 40 times over a four-year period, provided varying accounts of the number of times he used and purchased marijuana, and continues to associate with people who use marijuana. On appeal, Applicant does not challenge any of the Judge’s findings of fact but alleges that the Judge “made several unfounded assumptions,” particularly regarding the risk of recurrence. Appeal Brief at 1. For example, Applicant argues that the Judge did not properly consider that Applicant did not understand that he needed to follow Federal law, that he used only in a state in which marijuana use was legal under state law, and that he no longer uses marijuana as he now understands the application of Federal law. The Judge, however, made specific findings on this issue. None of Applicant’s arguments are enough to rebut the presumption that the Judge considered all of the record evidence or to demonstrate the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 19-01400 at 2 (App. Bd. Jun. 3, 2020). Applicant has not established that the Judge committed harmful error. Our review of the record reflects that the Judge examined the relevant evidence and articulated a satisfactory explanation for the decision, which 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: Gregg A. Cervi Gregg A. Cervi Administrative Judge Member, Appeal Board Signed: Allison Marie Allison Marie Administrative Judge Member, Appeal Board