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ISCR Case 07-00852 — CASE

Case record

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

Decision Date2/7/2008
Statusgranted
LevelHEARING
TypeSTANDARD ISCR
Related decisionsSee the hearing decision (Case 07-00852) →See the appeal decision (Case 07-00852.a1) →
Participants
Judge: Martin H. Mogul
Government Counsel: Candace L. Le'i
Applicant's Counsel: Holly Walker
Guidelines Evaluated
- Guideline EPersonal Conduct · For Applicant
- Guideline HDrug Involvement & Substance Misuse · For Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
Finding similar decisions…

ISCR Case 07-00852granted

Case Headnote

ISCR Case No. 07-00852

grantedFeb 7, 2008· Hon. Martin H. Mogul· hearing

Summary

A 30-year-old defense contractor was granted a security clearance despite past drug involvement and related personal conduct issues. The applicant admitted to using marijuana with varying frequency from approximately 1995 through October 2005, and again on July 21, 2006, after executing a Security Clearance Application on April 26, 2006. He also acknowledged purchasing marijuana, using mushrooms in the Netherlands in 1999, and using Ecstasy in 2002. These admissions raised concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement).

Disqualifying conditions related to drug involvement and personal conduct were initially identified. However, the Administrative Judge applied mitigating conditions, noting the applicant's credible testimony of his intention to abstain from future drug use.

The decision to grant the clearance was further supported by positive character references and commendations that attested to the applicant's integrity and reliability. The Judge also considered the applicant's limited and decreasing drug use over the years as a mitigating factor. Ultimately, the applicant was found eligible for access to classified information.

Why the Applicant Prevailed

The applicant provided credible testimony of his intention to abstain from drug use in the future.
Positive character references and commendations supported the applicant's integrity and reliability.
The applicant's limited and decreasing drug use over the years was considered in mitigation.

Conditions Referenced

Disqualifying

DC 25(a)raisedAny Drug Abuse
DC 25(c)raisedIllegal Drug Possession

Mitigating

MC 26(b)appliedDisassociation From Drug-using Associates
MC 26(b)appliedChanging or Avoiding the Environment Where Drugs Were Used
MC 26(b)appliedAn Appropriate Period of Abstinence

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedAug 17, 2007
Answer filedOct 2, 2007
Hearing heldJan 28, 2008
Decision dateFeb 7, 2008

Cite For

Mitigating Conditions for Past Drug Use Under Guideline H
Consideration of Character References in Security Clearance Decisions
Whole Person Concept in Evaluating 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.

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: HearingDecided: granted

The judge found that the applicant's use of marijuana after executing a Security Clearance Application raised concerns under Guideline E. However, the applicant's limited use of illegal substances in recent years, along with evidence of his disassociation from drug-using associates and positive personal achievements, led the judge to conclude that the applicant mitigated the concerns. The outcome was favorable for the applicant.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant executed a SCA on April 26, 2006 and thereafter used marijuana on July 21, 2006.	For Applicant	Questionable Judgment General	—	Denied	—	(b) omission/refusal followed advice of counsel; later cooperated fully	Claimed Other

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline H (Drug Involvement) · descriptive summary of a decided case

Posture: HearingDecided: granted

The judge found that the applicant's past marijuana use, including use after applying for a security clearance, raised concerns. However, the applicant's limited recent use, intention to abstain from drugs, and positive personal and professional attributes led to a favorable decision. The applicant was granted a security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant used marijuana with varying frequency from approximately 1995 through October 2005. He used it one last time on July 21, 2006.	For Applicant	MarijuanaWHILE CLEARED	Frequent	Admitted	—	(b) acknowledges involvement; evidence of action; established abstinence	—
1.b	Applicant used marijuana in July 21, 2006, after he executed a Security Clearance Application (SCA) on April 26, 2006.	For Applicant	MarijuanaWHILE CLEARED	Not Applicable	Denied	—	—	—
1.c	Applicant has purchased some of the marijuana that he has used.	For Applicant	Marijuana	Not Applicable	Admitted	—	—	—
1.d	Applicant used mushrooms in the Netherlands in 1999.	For Applicant	Psilocybin	Not Applicable	Admitted	—	—	—
1.e	Applicant used Ecstasy in 2002.	For Applicant	MDMA	Not Applicable	Admitted	—	—	—

Descriptive standardized rendering of a decided public case (Guideline H). The verbatim source decision is shown in full below.

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

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ------------------------ ) ISCR Case No. 07-00852 SSN: ---------------- ) ) Applicant for Security Clearance ) Appearances For Government: Candace Le’i, Esquire, Department Counsel For Applicant: Holly Walker, Esquire February 7, 2008 ______________

STATEMENT OF CASE

______________ MOGUL, Martin H., Administrative Judge: Applicant submitted his Security Clearance Application (SF 86), on April 26, 2006. On August 17, 2007, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security concerns under Guidelines H and E for Applicant. The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the revised adjudicative guidelines (AG) promulgated by the President on December 29, 2005, and effective within the Department of Defense for SORs issued after September 1, 2006.

Applicant responded to the SOR (RSOR) in writing on October 2, 2007, and requested a hearing before an Administrative Judge. I received the case assignment on November 13, 2007. DOHA issued a Notice of Hearing on January 8, 2008, and I convened the hearing on January 28, 2008. The Government offered Exhibits (Ex.) 1 through 7, which were received without objection. Applicant testified on his own behalf and two other witnesses testified on behalf of Applicant. He submitted Exhibits A through L, without objection. DOHA received the transcript of the hearing (Tr) on February 5, 2008. Based upon a review of the case file, pleadings, exhibits, and testimony, eligibility for access to classified information is granted.

FINDINGS OF FACT

In his RSOR Applicant admitted SOR allegations1.a., 1.c., 1.d., and 1.e., and he denied 1.b. and 2.a. The admitted allegations are incorporated herein as findings of fact. After a complete and thorough review of the evidence in the record, including Applicant's Answer to the SOR, the admitted documents, and the testimony of Applicant, and upon due consideration of that evidence, I make the additional findings of fact: Applicant is 30 years old. He is not married, and he has no children. He received a Bachelor of Science degree in 2000. Applicant works for a defense contractor, and he seeks a DoD security clearance in connection with his employment in the defense sector. Paragraph 1 (Guideline H - Drug Involvement) The SOR lists 5 allegations regarding illegal drug involvement under Adjudicative Guideline H. All of the allegations will be discussed in the same order as they were listed in the SOR: 1.a. Applicant used marijuana with varying frequency from approximately 1995 through October 2005. He used it one last time on July 21, 2006. Applicant testified that he never used marijuana in high school. He started using it when he began attending college in 1995. It was sporadic, but for one quarter in 1998, his usage increased to one or two times a week. When he noticed that it was affecting his grades, his usage decreased to approximately once a month. After he graduated in 2000, his use of marijuana decreased even more significantly to one or two times a year until his second to last usage in October 2005. He ceased usage in October 2005, because he was aware that he would be applying for a SCA. However, Applicant conceded that he used it one last time on July 21, 2006, when it was offered to him on his birthday. He testified credibly that he intends to never use marijuana again. He explained that he has committed to his girlfriend that he will not use it again. He is planning a life with his girlfriend, and he does not want drugs to play a part in that life. He also testified that using Marijuana would hurt his career, about which he is now more serious. Finally, he testified that even if he did not need a security clearance, he has made a decision that he will not use marijuana or any other illegal drug in the future. 1.b. Applicant used marijuana in July 21, 2006, after he executed a Security Clearance Application (SCA) on April 26, 2006. In the SOR, the Government alleged that Applicant knew he could not use drugs while holding a security clearance. Applicant denied this allegation in his RSOR, although during his testimony, he conceded that he did use the marijuana one last time after applying for a security clearance. He described it as “a lapse in judgement” (Tr at 103). He also concluded, “in retrospect, it was very foolish” (Tr at 104). 1.c. Applicant has purchased some of the marijuana that he has used. 1.d. Applicant used mushrooms in the Netherlands in 1999. He testified that he purchased the mushrooms at a store, and he was under the belief that the mushrooms were legal in the Netherlands. He never again used mushrooms or any other hallucinogenic drug after that incident. 1.e. Applicant used Ecstasy in 2002. He testified that his girlfriend gave him a third of a pill, which she identified as Ecstacy. He felt no effect from the pill. He has never used Ecstacy since that time, and he has no intension of using it in the future. Applicant is no longer with that girlfriend. Paragraph 2 (Guideline E - Personal Conduct) 2.a. As discussed in 1.b., above, Applicant executed a SCA on April 26, 2006 (Exhibit 1). He thereafter used marijuana on one occasion on July 21, 2006. The Government alleges that Applicant’s use of marijuana after he applied for a security clearance exhibits questionable judgement and unwillingness to comply with rules and regulations. Mitigation Applicant received the very prestigious Eagle Scout Award from the Boy Scouts of America in 1993 when he was 16. He submitted the Eagle Scout certification and a number of Eagle Scout commendations from important public figures (Exhibit J). He also submitted his performance evaluations form his employer for years 2004, 2005, and 2006 (Exhibit G). His evaluations were fairly positive and his work efforts seem to be moving in the right direction. Finally, two witnesses, who are coworkers of Applicant, testified on his behalf. Applicant also offered into evidence character letters from individuals who know or have known him in his professional or private life (Exhibit E). They all were extremely laudatory in describing Applicant’s high integrity, reliability, and good judgement.

POLICIES

When evaluating an Applicant’s suitability for a security clearance, the Administrative Judge must consider the revised adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful in evaluating an Applicant’s eligibility for access to classified information. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The Administrative Judge’s over-arching adjudicative goal is a fair, impartial and common sense decision. According to AG ¶ 2(c), the entire process is a conscientious scrutiny of a number of variables known as the “whole person concept.” The Administrative Judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision. The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical and based on the evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture. Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the Applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The Applicant has the ultimate burden of persuasion as to obtaining a favorable security decision. A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the Applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

Section 7 of Executive Order 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline H - Drug Involvement With respect to Guideline H, the Government has established its case. Applicant's improper and illegal drug abuse, including the possession, and use of marijuana, and his use after applying for a security clearance is of concern, especially in light of his desire to have access to the nation's secrets. Applicant's overall conduct pertaining to his illegal substance abuse clearly falls within Drug Involvement Disqualifying Condition (DC) 25. (a) (any drug abuse), and (c) (illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution). Based on the Applicant’s extremely limited use of any illegal substance in the last few years, and his demonstrated intention not to continue using drugs in the future, I conclude that Applicant’s conduct comes within Mitigating Condition (MC) 26. (b) because of Applicant’s (1) disassociation from drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used and (3) an appropriate period of abstinence. In this case, the Government has met its initial burden of proving by substantial evidence that Applicant has used illegal drugs for many years under Guideline H. Applicant, on the other hand, has introduced persuasive evidence in rebuttal, explanation or mitigation which is sufficient to overcome the Government's case against him. Accordingly, Paragraph 1 Guideline H of the SOR is concluded for Applicant. Guideline E - Personal Conduct With respect to Guideline E, the evidence establishes that Applicant executed a SCA on April 26, 2006, and he thereafter used marijuana on July 21, 2006. While Applicant’s use of marijuana after completing a SCA does show poor judgement, it was done only on one occasion, and he testified that he has realized the folly of such conduct. In reviewing the DCs under Guideline E, I conclude that no DCs apply. I resolve Paragraph 2, Guideline E, for Applicant.

WHOLE PERSON CONCEPT

Under the whole person concept, the Administrative Judge must evaluate an Applicant’s eligibility for a security clearance by considering the totality of the Applicant’s conduct and all the circumstances. The Administrative Judge should consider the nine adjudicative process factors listed at AG ¶ 2(a): “(1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.” Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole person concept. I have considered the potentially disqualifying and mitigating conditions under Guidelines H and E, in light of all the facts and circumstances surrounding this case. Based on all of the reasons cited above, including Applicant’s strong and credible testimony that he will not use any illegal substance in the future, together with his achievement of Eagle Scout and his positive employment evaluations, and the laudatory letters of recommendation and testimony, I find that the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance under the whole person concept. For all these reasons, I conclude Applicant mitigated the security concerns.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline H: FOR APPLICANT Subparagraph 1.a: For Applicant Subparagraph 1.b: For Applicant Subparagraph 1.c: For Applicant Subparagraph 1.d: For Applicant Subparagraph 1.e: For Applicant Paragraph 2, Guideline E: FOR APPLICANT Subparagraph 2.a: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.

Martin H. Mogul Administrative Judge