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ISCR Case 18-00962 — CASE

ISCR Case 18-00962denied

Case Headnote

ISCR Case No. 18-00962

deniedFeb 5, 2019· Hon. Edward W. Loughran· hearing

Summary

A 33-year-old defense contractor was denied a security clearance under Guideline H (Drug Involvement) due to unresolved drug involvement and substance misuse. The Statement of Reasons alleged that the applicant used marijuana while holding a security clearance, specifically admitting to consuming marijuana-infused cookies and using a marijuana vaporizer-pen. These actions raised disqualifying conditions under Adjudicative Guidelines paragraphs 25(a) and 25(f).

Despite the applicant acknowledging past marijuana use and signing a statement of intent to abstain from future use, the decision found insufficient mitigation. While Adjudicative Guidelines paragraph 26(b) was considered, the applicant's continued marijuana use after committing to abstinence, and while holding a clearance, raised significant doubts about his reliability and trustworthiness.

Ultimately, the applicant's claims of maturity and intent to abstain were not enough to overcome the concerns stemming from his conduct. The security clearance was therefore denied.

Why the Applicant Was Denied

The applicant used marijuana while holding a security clearance and after stating he would not use it in the future.
The applicant's conduct raised doubts about his reliability and trustworthiness, despite his claims of maturity and intent to abstain.

Conditions Referenced

Disqualifying

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

Mitigating

AG ¶ 26(b)appliedThe Individual Acknowledges His or Her Drug Involvement and Substance Misuse, Provides Evidence of Actions Taken to Overcome This Problem, and Has Established a Pattern of AbstinenceThe applicant signed a statement of intent to abstain from all drug involvement and substance misuse.

Key Rule Quoted

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

Procedural Posture

SOR issuedMay 11, 2018
Answer filedJun 18, 2018Applicant elected to have the case decided on the written record.
Hearing held—Case assigned to judge on January 28, 2019.
Decision dateFeb 5, 2019

Cite For

Denial of Security Clearance Due to Unresolved Drug Involvement Under Guideline H
Failure to Demonstrate Sufficient Mitigation Despite Acknowledgment of Past Substance Misuse
Questions About Reliability and Trustworthiness Due to Illegal Drug Use While Holding a Security Clearance

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 H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant used marijuana while holding a security clearance and admitted to consuming marijuana in baked goods and through a vaporizer-pen. The applicant's drug involvement was deemed not mitigated, leading to a decision against the applicant on both allegations.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant used marijuana while holding a security clearance.	Against Applicant	MarijuanaWHILE CLEARED	Regular	Admitted	—	—	—
1.b	Applicant admitted to eating cookies baked with marijuana and using a vaporizer-pen with marijuana contents.	Against Applicant	MarijuanaWHILE CLEARED	Regular	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. 18-00962 ) Applicant for Security Clearance ) Appearances For Government: Nicholas T. Temple, Esq., Department Counsel For Applicant: Pro se ______________

STATEMENT OF CASE

______________ LOUGHRAN, Edward W., Administrative Judge: Applicant did not mitigate the drug involvement and substance misuse security concerns. Eligibility for access to classified information is denied. Statement of the Case On May 11, 2018, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline H, drug involvement and substance misuse. Applicant responded to the SOR on June 18, 2018, and elected to have the case decided on the written record in lieu of a hearing. The Government’s written case was submitted on August 6, 2018. A complete copy of the file of relevant material (FORM) was provided to Applicant, who was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the security concerns. Applicant received the FORM on August 10, 2018. As of September 28, 2018, he had not responded. The case was assigned to me on January 28, 2019. The Government exhibits included in the FORM are admitted in evidence. 02/05/2019

FINDINGS OF FACT

Applicant is a 33-year-old employee of a defense contractor. He has worked for his current employer since March 2017. He has a bachelor’s degree, awarded in 2006, and a master’s degree, awarded in 2007. He is single without children.1

Applicant smoked marijuana when he was in college and graduate school and less frequently after he graduated. He held a security clearance when he worked for a defense contractor from 2007 to 2011. He reported on a Questionnaire for National Security Positions (SF 86) in April 2017 that he used marijuana on about 60 occasions between 2002 and 2016, including while holding a security clearance. He stated that he did not intend to use marijuana in the future:

My use has always been casual, and only when it was offered to me. I’ve generally been unemployed or self-employed, and usually in states/countries where it’s already been legalized. I don’t have any desire to use it when it would directly affect my livelihood.2

In response to DOHA interrogatories in April 2018, Applicant admitted that he ate cookies baked with marijuana in July 2017, and that on October 31, 2017, a friend offered him a “vaporizer-pen with some marijuana in its contents.” Applicant “took a single pull and barely felt any effects.” He again stated that he did not intend to use marijuana in the future:

Though I have admitted that I am not against Marijuana, I also use it very infrequently. Since the experience on October 31st, I haven’t used it since. I have never purchased it, nor any related paraphernalia. Upon conducting the clearance interview [in December 2017], I realized that I would not want to jeopardize my employment for its occasional use.3

In his June 2018 response to the SOR, Applicant stated that he was an infrequent marijuana user, and that he “clearly underestimated the gravity and severity of choosing to use marijuana during this specific period [2009-2011] under which [he] held a clearance.” His marijuana use never adversely affected his job performance, and he volunteered to work in Iraq. He now fully understands that marijuana use is inconsistent with holding a security clearance. He moved to a different city, away from the people with whom he used marijuana. He signed a statement of intent to abstain from all drug involvement and substance misuse.4

1 Item 3.

2 Item 3.

3 Item 4.

4 Item 2-4.

POLICIES

This case is adjudicated under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG), which became effective on June 8, 2017.

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are to be used 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, administrative judges apply the guidelines in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(a), 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 national security eligibility will be resolved in favor of the national security.”

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 the applicant or proven by Department Counsel.” The applicant has the ultimate burden of persuasion to obtain 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 safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information.

Section 7 of EO 10865 provides that adverse 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 and Substance Misuse

The security concern for drug involvement and substance misuse is set out in AG ¶ 24:

The illegal use of controlled substances, to include the misuse of prescription and non-prescription drugs, and the use of other substances that cause physical or mental impairment or are used in a manner inconsistent with their intended purpose can raise questions about an individual’s reliability and trustworthiness, both because such behavior may lead to physical or psychological impairment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations. Controlled substance means any “controlled substance” as defined in 21 U.S.C. 802. Substance misuse is the generic term adopted in this guideline to describe any of the behaviors listed above.

The guideline notes several conditions that could raise security concerns under AG ¶ 25. The following are potentially applicable in this case:

(a) any substance misuse (see above definition); and

(f) any illegal drug use while granted access to classified information or holding a sensitive position.

Applicant used marijuana, including while holding a security clearance. The above disqualifying conditions are applicable.

AG ¶ 26 provides conditions that could mitigate security concerns. The following are potentially applicable:

(a) the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual's current reliability, trustworthiness, or good judgment; and

(b) the individual acknowledges his or her drug involvement and substance misuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence, including, but not limited to:

(1) disassociation from drug-using associates and contacts;

(2) changing or avoiding the environment where drugs were used; and

(3) providing a signed statement of intent to abstain from all drug involvement and substance misuse, acknowledging that any future involvement or misuse is grounds for revocation of national security eligibility.

Applicant has not used marijuana since October 31, 2017. He stated that he has matured and realizes that his past marijuana use was unacceptable, and that he will never use illegal drugs again. He signed a statement of intent not to use any illegal drugs in the future. He is credited with his honesty and truthfulness throughout these proceedings. However, he used marijuana while holding a security clearance and after he submitted an SF 86 in which he stated that he did not intend to use marijuana in the future. Applicant’s conduct continues to cast doubt on his reliability, trustworthiness, and good judgment. His illegal drug use is not mitigated. AG ¶ 26(a) is not applicable, and AG ¶ 26(b) is partially applicable.

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 relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d):

(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) the 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 considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have incorporated my comments under Guideline H in my whole-person analysis.

Overall, the record evidence leaves me with questions and doubts about Applicant’s eligibility and suitability for a security clearance. I conclude Applicant did not mitigate the drug involvement and substance misuse 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:

Against Applicant

Subparagraphs 1.a-1.b:

Against Applicant

CONCLUSION

It is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied.

________________________ Edward W. Loughran Administrative Judge