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ISCR Case 18-02250 — CASE

ISCR Case 18-02250denied

Case Headnote

ISCR Case No. 18-02250

deniedMar 14, 2019· Hon. LeRoy F. Foreman· hearing

Summary

A 26-year-old analyst employed by a federal contractor was denied a security clearance under Guideline H (Drug Involvement). The denial stemmed from the applicant's admitted marijuana use, which occurred with varying frequency from the fall of 2011 to at least July 2017.

The Statement of Reasons specifically alleged that the applicant used marijuana during this period and intended to use it again in the future. Disqualifying conditions under Adjudicative Guidelines (AG) ¶ 25(a), ¶ 25(c), and ¶ 25(g) were raised. While mitigating conditions AG ¶ 26(a) and ¶ 26(b) were considered, they were not sufficient to overcome the security concerns.

The judge found the applicant's claims of abstinence and disassociation from drug-using peers unconvincing. A key factor in the denial was the applicant's expressed intent to continue marijuana use until explicitly informed it would impact his security clearance eligibility. This demonstrated insufficient evidence of rehabilitation and raised ongoing reliability concerns, leading to the denial.

Why the Applicant Was Denied

The applicant admitted to using marijuana from 2011 to 2017, which raised significant security concerns.
The applicant's claims of abstinence and disassociation from drug-using peers were deemed unconvincing by the judge.
The applicant expressed an intent to continue marijuana use until informed it would affect his security clearance eligibility.

Conditions Referenced

Disqualifying

AG ¶ 25(a)raisedSubstance Misuse
AG ¶ 25(c)raisedIllegal Possession of a Controlled Substance
AG ¶ 25(g)raisedIntent to Continue Drug Involvement

Mitigating

AG ¶ 26(a)rejectedBehavior Occurred Long AgoThe applicant's marijuana use was recent and frequent.
AG ¶ 26(b)rejectedAcknowledgment and Evidence of Actions TakenThe applicant did not provide corroborating evidence to support his claims of rehabilitation.

Key Rule Quoted

“Once a concern arises regarding an applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance.”
— ISCR Case No. 09-01652 at 3 (App. Bd. Aug 8, 2011)

Procedural Posture

SOR issuedOct 31, 2018
Answer filedNov 20, 2018
Hearing held—Applicant requested a decision on the written record without a hearing.
Decision dateMar 14, 2019

Cite For

Denial of Security Clearance Based on Recent and Frequent Drug Use Under Guideline H
Insufficient Evidence of Rehabilitation and Credibility Issues Regarding Drug Involvement
Presumption Against Granting Security Clearance When Concerns Arise

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 with varying frequency from the fall of 2011 to at least July 2017 and expressed an intent to use marijuana in the future. The decision was denied based on these findings, which raised security concerns under Guideline H.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant used marijuana with varying frequency from the fall of 2011 to at least July 2017.	Against Applicant	Marijuana	Frequent	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.b	Applicant intends to use marijuana in the future.	Against Applicant	Stated Intent to Use Again	Not Applicable	Denied	(g) expressed intent to continue, or failure to commit to discontinue	—	—

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: ) ) [Redacted] ) ISCR Case No. 18-02250 ) Applicant for Security Clearance ) Appearances For Government: Moira Modzelewski, Esq., Department Counsel For Applicant: Pro se ______________

STATEMENT OF CASE

______________ FOREMAN, LeRoy F., Administrative Judge: This case involves security concerns raised under Guideline H (Drug Involvement and Substance Misuse). Eligibility for access to classified information is denied. Statement of the Case Applicant submitted a security clearance application (SCA) on February 9, 2016. On October 31, 2018, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent him a Statement of Reasons (SOR) alleging security concerns under Guideline H. The DOD CAF acted under Executive Order (Exec. Or.) 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) promulgated in Security Executive Agent Directive 4, National Security Adjudicative Guidelines (December 10, 2016). Applicant answered the SOR on November 20, 2018, and requested a decision on the written record without a hearing. Department Counsel submitted the 03/14/2019

Government’s written case on December 27, 2018. On December 28, 2018, a complete copy of the file of relevant material (FORM) was sent to Applicant, who was given an opportunity to file objections and submit material to refute, extenuate, or mitigate the Government’s evidence. He received the FORM on January 3, 2019, and submitted a response, which was included in the record without objection by Department Counsel. The case was assigned to me on March 12, 2019.

Findings of Fact1

In Applicant’s answer to the SOR, he admitted SOR ¶ 1.a, alleging that he used marijuana with varying frequency from the fall of 2011 to at least July 2017. He denied SOR ¶ 1.b, alleging that he intends to use marijuana in the future. His admission of SOR ¶ 1.a is incorporated in my findings of fact.

Applicant is a 26-year-old analyst employed by a federal contractor since August 2015. He attended college from August 2010 to May 2015, received a bachelor’s degree, and was hired by his current employer shortly thereafter. He has no military service. He has never married and has no children. He has never held a security clearance.

When Applicant submitted his SCA, he answered “no” to a question asking if he had illegally used any drugs or controlled substances in the last seven years. When he was interviewed by a security investigator in August 2017, he told the investigator that he wanted to change his answer to the question to “yes.” He told the investigator that he used marijuana once or twice a week during college, that he contributed money to buy marijuana, and that he purchased it himself at least once. He told the investigator that he stopped using marijuana in 2015, while looking for employment, and abstained for four to six months after being hired by his current employer. After he became comfortable in his job, he resumed his use of marijuana, smoking it once a month until July 2017, with a period of abstinence for four to six months in 2016. He admitted using marijuana within 30 days of the interview.

When asked about his future intentions, Applicant told the investigator that he had no immediate plans to stop using marijuana and that he intended to move to a jurisdiction where marijuana was legal. After being advised that marijuana use violates federal law even when it is legal under local law, he told the investigator that he would stop using marijuana if he had to choose between using marijuana and holding a security clearance. Finally, he told the investigator that he answered “no” to the drug- related questions in the SCA because he was trying to hide his marijuana use. (FORM Item 4 at 7-8.)

In Applicant’s response to the FORM, he stated that he had abstained from marijuana since his August 2017 interview. He stated that he had disassociated from

1 Applicant’s personal information is extracted from his security clearance application (GX 3) unless otherwise indicated by a parenthetical citation to the record.

the “collegiate sort of crowd” with whom he had used marijuana, and had established a new network of work-related colleagues and acquaintances, including an employee sports group. He stated that his social circle now consists of other professionals including doctors and lawyers. He submitted a statement of intent to refrain from illegal drug involvement and acknowledged that any future drug involvement would be grounds for revoking a security clearance. He attached documentation of a urinalysis conducted on January 23, 2019, which tested negative for marijuana as well as other controlled substances.

POLICIES

“[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to “control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865 § 2.

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies these guidelines in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available and reliable information about the person, past and present, favorable and unfavorable.

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk that the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information.

Clearance decisions must be made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v.

Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 15- 01253 at 3 (App. Bd. Apr. 20, 2016).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005).

An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531.

ANALYSIS

Guideline H (Drug Involvement and Substance Misuse)

The concern under this guideline 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.

Applicant’s admissions and the documentary evidence in the FORM establish the following disqualifying conditions under this guideline:

AG ¶ 25(a): any substance misuse (see above definition);

AG ¶ 25(c): illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; and

AG ¶ 25(g): expressed intent to continue drug involvement and substance misuse, or failure to clearly and convincingly commit to discontinue such misuse.

The following mitigating conditions are potentially applicable:

AG ¶ 26(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

AG ¶ 26(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;

AG ¶ 26(a) is not established. Applicant’s marijuana use was recent, frequent, and did not occur under circumstances making recurrence unlikely.

AG ¶ 26(b) is not fully established. Applicant has acknowledged his drug involvement, and he appears to have abstained from marijuana use since his August 2017 interview. He claims that he has disassociated from his marijuana-using collegiate group and has become involved in athletic and professional circles related to his employment. He did not provide any corroborating evidence to support his claims. He provided a signed statement of intent to abstain from further drug involvement.

I am not satisfied that Applicant’s assertions are credible. He admitted falsifying his SCA to hide his drug involvement.2 During his security interview in August 2017, he declared his intention to continue using marijuana until the investigator made it clear that marijuana use was an impediment to obtain a clearance. He then declared that he would stop using marijuana if he had to choose between marijuana use and a security clearance. He appears to be willing to say whatever it takes to obtain a security clearance.

2 Falsification of the SCA was not alleged in the SOR. However, conduct not alleged in the SOR may be considered to assess an applicant's credibility; to decide whether a particular adjudicative guideline is applicable; to evaluate evidence of extenuation, mitigation, or changed circumstances; to consider whether an applicant has demonstrated successful rehabilitation; or as part of a whole-person analysis. ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006) (citations omitted). I have considered Applicant’s falsification of his SCA for these limited purposes.

WHOLE PERSON CONCEPT

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. In applying the whole- person concept, an 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 and applying the adjudicative factors in AG ¶ 2(d).3

I have incorporated my comments under Guideline H in my whole-person analysis and applied the adjudicative factors in AG ¶ 2(d). Because Applicant requested a determination on the record without a hearing, I had no opportunity to evaluate his credibility and sincerity based on demeanor. See ISCR Case No. 01-12350 at 3-4 (App. Bd. Jul. 23, 2003).

“Once a concern arises regarding an applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance.” ISCR Case No. 09-01652 at 3 (App. Bd. Aug 8, 2011), citing Dorfmont v. Brown, 913 F.2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After weighing the disqualifying and mitigating conditions under Guideline H, and evaluating all the evidence in the context of the whole person, I conclude Applicant has not mitigated the security concerns raised by his drug involvement.

FORMAL FINDINGS

I make the following formal findings on the allegations in the SOR:

Paragraph 1, Guideline H (Drug Involvement and Substance Misuse):

AGAINST APPLICANT

Subparagraphs 1.a and 1.b:

Against Applicant

3 The factors are: (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.

CONCLUSION

I conclude that it is not clearly consistent with the national security interests of the United States to grant Applicant eligibility for access to classified information. Clearance is denied.

LeRoy F. Foreman Administrative Judge