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ISCR Case 18-01477 — CASE

ISCR Case 18-01477denied

Case Headnote

ISCR Case No. 18-01477

deniedFeb 11, 2019· Hon. Richard A. Cefola· hearing

Summary

A 50-year-old defense contractor was denied a security clearance under Guideline H (Drug Involvement) due to a prolonged history of marijuana use. The applicant began using marijuana at age 18 in approximately 1987, continuing for about ten years until 1996. He resumed use in 2010, with his last reported use in June 2017, citing self-diagnosed anxiety as the reason.

During a June 2017 interview, the applicant stated an intent to continue marijuana use until his anxiety subsided, though he later recanted this statement at his hearing. Disqualifying conditions under Adjudicative Guidelines Paragraphs 25(a) and 25(c) were raised.

The denial was based on the applicant's admitted lengthy history of marijuana use, including recent use until June 2017. The administrative judge found the applicant's recantation of his intent to continue use lacked credibility, and insufficient evidence was presented to establish a pattern of abstinence or rehabilitation. Consequently, eligibility for access to classified information was denied.

Why the Applicant Was Denied

The applicant admitted to a lengthy history of marijuana use, including recent use until June 2017.
The applicant's recantation of his intent to continue marijuana use during the hearing was not deemed credible.
Insufficient evidence was presented to demonstrate a pattern of abstinence or rehabilitation.

Conditions Referenced

Disqualifying

AG ¶ 25(a)appliedSubstance Misuse
AG ¶ 25(c)appliedIllegal Possession of a Controlled Substance

Key Rule Quoted

“Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

Procedural Posture

SOR issuedJul 6, 2018
Answer filedAug 7, 2018
Hearing heldOct 2, 2018
Decision dateFeb 11, 2019

Cite For

Evaluation of Drug Involvement Under Guideline H
Credibility of Applicant's Recantation Regarding Drug Use
Insufficient Evidence for Mitigating Drug-related Security Concerns

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: HearingDecided: denied

The judge found that the applicant had a long history of marijuana use, beginning at age 18 and continuing intermittently until June 2017. The applicant's stated intent to continue using marijuana until his anxiety subsided raised concerns, leading to a decision against granting security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant began using marijuana at the age of 18 in about 1987 and used the illegal substance for about ten years until about 1996. He resumed his marijuana use in about 2010 until his last usage in June of 2017 to treat his anxiety.	Against Applicant	MarijuanaWHILE CLEARED	Frequent	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.b	During a June 2017 interview, Applicant stated he would continue to use marijuana until his self-diagnosed anxiety subsided, but recanted this at his hearing.	Against Applicant	Stated Intent to Use AgainWHILE CLEARED	Not Applicable	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—

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. 18-01477

)

) Applicant for Security Clearance )

For Government: Tara Karoian, Esquire, Department Counsel For Applicant: Pro se

February 11, 2019

______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

On May 2, 2017, Applicant submitted his Electronic Questionnaire for Investigations Processing (e-QIP). On July 6, 2018, the Department of Defense Consolidated Adjudications Facility (DODCAF) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline H. 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 Adjudicative Guidelines effective June 8, 2017.

Applicant answered the SOR in writing on August 7, 2018, and subsequently requested a hearing before an administrative judge. The Defense Office of Hearings and Appeals (DOHA) received the request on or about August 29, 2018. I received the case assignment on August 30, 2018. DOHA issued a Notice of Hearing on September 11, 2018, and I convened the hearing as scheduled on October 2, 2018. The Government offered Exhibits (GXs) 1 through 3, which were received into evidence without objection. Applicant testified and submitted Exhibits (AppXs) A and B, without

objection. He also asked that the record be kept open until November 2, 2018, for the receipt of additional documentation. On October 28, 2018, Applicant also submitted AppX C, which was received into evidence without objection. DOHA received the transcript of the hearing (TR) on October 11, 2018. Based upon a review of the pleadings, exhibits, and testimony, eligibility for access to classified information is denied.

FINDINGS OF FACT

In his Answer to the SOR Applicant admitted the factual allegations in Paragraph 1 of the SOR, with explanations He also provided additional information to support his request for eligibility for a security clearance.

Applicant is 50 years old, divorced, but remarried. (TR at page 17 line 6 to page 18 line 16, at page 34 line 10 to page 35 line 4, and GX 1 at page 5.) He works for a defense contractor, but does not currently have a security clearance. (Id.)

Guideline H – Drug Involvement

1.a. Applicant began using marijuana, at the age of 18, in about 1987; and used the illegal substance for about ten years, “mostly on weekends,” until about 1996. (TR at page 18 line 17 to page 29 line 4.) He resumed his marijuana use in about 2010 “when . . . [his] divorce was in full swing and . . . [Applicant] felt sad . . . [and] alone.” (Id.) He used marijuana, “two or three times a week,” until his last usage in June of 2017, to treat his “anxiety.” (TR at page 18 line 17 to page 29 line 4, and at page 36 lines 11–17.)

1.b. During a June 2017 interview with an investigator for DOD, Applicant averred that he would continue to use marijuana until his self-diagnosed anxiety, and related stress, subsided. (TR at page 29 line 9 to page 31 line 6.) At his hearing, Applicant recanted this averment. (TR at page 31 line 7 to page 34 line 9.)

Subsequent to his hearing, Applicant offered a letter of recommendation from a “close friend” of “over 30 years.” (AppX C.)

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the 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, administrative judges apply the guidelines in conjunction with the factors listed in AG ¶ 2 describing 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.” 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, an “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, and has the ultimate burden of persuasion as to obtaining a favorable clearance 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 and Substance Misuse

The security concern relating to the guideline for Drug Involvement and Substance Misuse is set forth at 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 at AG ¶ 25 contains seven conditions that could raise a security concern and may be disqualifying. Two conditions are established:

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

(c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia.

Appellant smoked marijuana for about 17 years, from about 1987–1996, and from about 2010–2017. Therefore, AG ¶ 25 (a), and (c ) are established.

The guideline at AG ¶ 26 contains four conditions that could mitigate security concerns. Two conditions may be 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 ceased his marijuana use about 18 months ago, only after being interviewed by a DOD investigator. However, during that interview Applicant averred that he intended to use the illegal substance in the future. I find that not enough time has passed to believe that Applicant will now adhere to his new averment. Guideline H is found against 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 an applicant’s conduct and all the 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.

AG ¶ 2(b) requires each case must be judged on its own merits. 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. Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant has not mitigated the security concerns arising from his drug involvement and substance abuse.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline H:

AGAINST APPLICANT

Subparagraph 1.a:

Against Applicant Subparagraph 1.b:

Against Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant national security eligibility for a security clearance. Eligibility for access to classified information is denied.

_________________ Richard A. Cefola Administrative Judge