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ISCR 18-02241: Guideline H security clearance hearing, granted (2020) · CASE

ISCR Case 18-02241granted

Case headnote

ISCR Case No. 18-02241

grantedApr 1, 2020· Hon. John Grattan Metz, Jr.· hearing

Summary

A 34-year-old senior software engineer sought to retain her security clearance, facing concerns under Guideline H (Drug Involvement) and Guideline J (Criminal Conduct). The Statement of Reasons alleged that she used several illegal drugs from approximately April 2004 to at least March 2015. Additionally, a June 2010 drug possession charge was noted, though the applicant was acquitted of this charge.

The Administrative Judge considered these allegations, applying both disqualifying and mitigating conditions under Guidelines H and J. Key mitigating factors were identified: the applicant had not used illegal drugs for four years, demonstrating a sustained period of abstinence. She also actively distanced herself from friends and family associated with drug use, indicating a commitment to a drug-free lifestyle.

Furthermore, character references were provided that supported her trustworthiness and reliability. Based on these mitigating factors, the Administrative Judge determined that the security clearance should be GRANTED.

Why the applicant prevailed

The applicant has not used illegal drugs for four years.
She distanced herself from friends and family associated with drug use.
Character references supported her trustworthiness.

Conditions referenced

Disqualifying

HraisedDrug InvolvementThe Government established a case for disqualification due to the applicant's illegal drug abuse.
JraisedCriminal ConductThe Government established a case for disqualification based on the applicant's past drug-related criminal conduct.

Mitigating

HappliedDrug InvolvementThe applicant's drug abuse was not recent, not frequent, and occurred under circumstances unlikely to recur.
JappliedCriminal ConductThe applicant was acquitted of the drug possession charge, and her past drug use lacked security significance.

Key rule quoted

“The Government has a compelling interest in ensuring each applicant possesses the required judgment, reliability, and trustworthiness of those who must protect national interests as their own.”
Department of the Navy v. Egan, 484 U.S. 518 (1988)

Procedural posture

SOR issuedOct 12, 2018
Answer filed—Applicant requested a hearing.
Hearing heldMar 20, 2019
Decision dateApr 1, 2020

Cite for

Mitigation of Drug Involvement Under Guideline H Due to Time Elapsed Since Last Use
Mitigation of Criminal Conduct Under Guideline J Based on Acquittal and Lack of Charges
Importance of Character References in Establishing Trustworthiness

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 34: “Applicant admitted the SOR allegations. She is a 34-year-old senior software engineer employed by a defense contractor since December 2012.”
Tenure: ~8 years: “Applicant admitted the SOR allegations. She is a 34-year-old senior software engineer employed by a defense contractor since December 2012.”
Held a clearance before: Yes: “She seeks to retain the clearance she was first issued in April 2009 (GE 1).”

Standardized Decision Profile

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

Posture: Decision on RecordDecided: granted

The judge found that the applicant had used several illegal drugs over an extended period, including while holding a security clearance. However, the applicant successfully mitigated the security concerns by demonstrating a significant period of abstinence from drug use and distancing herself from previous drug-using associates. The decision was ultimately granted, indicating that the applicant is unlikely to engage in future drug abuse.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant was acquitted of a drug possession charge in June 2010, which contributed to the resolution of the criminal conduct concerns. Although the government established a case for disqualification under Guideline J, the applicant successfully mitigated these concerns, leading to a granted security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation

Descriptive standardized rendering of a decided public case. 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. 18-02241 ) Applicant for Security Clearance ) Appearances For Government: Eric C. Price, Esquire, Department Counsel Tovah A. Minster, Deputy Chief Department Counsel For Applicant: Daniel Meyer, Esquire. 04/01/2020

STATEMENT OF CASE

METZ, John Grattan, Jr., Administrative Judge: Based on the record in this case.1 I grant Applicant's clearance. On 12 October 2018, the Department of Defense (DoD) sent Applicant a Statement of Reasons (SOR) raising security concerns under Guideline H, Drug Involvement, and Guideline J, Criminal Conduct. 2 Applicant timely answered the SOR, requesting a hearing before the Defense Office of Hearings and Appeals (DOHA). DOHA assigned the

case to me 26 February 2019, and I convened a hearing 20 March 2019. DOHA received the transcript 1 April 2019, and the record closed.

FINDINGS OF FACT

Applicant admitted the SOR allegations. She is a 34-year-old senior software engineer employed by a defense contractor since December 2012. She seeks to retain the clearance she was first issued in April 2009 (GE 1). Applicant used several illegal drugs from about April 2004 to at least March 2015, a fact she disclosed on her June 2016 clearance application (SOR 1.a., 1.b., 1.c.) (GE 1). At the time, she stated that she used cocaine or crack cocaine and stimulants3 about twice a year between October 2008 and March 2015, when she got together with a long- distance friend, who provided the drugs; she also stated that she used marijuana about eight times per year with a long-distance friend who provided it, or with a sibling. Applicant stated that her marijuana use during this period was with her sisters when she was home on family visits. She used the marijuana to be sociable During an October 2017 interview with a Government investigator (GE 2), she clarified that her cocaine and ecstasy use occurred at social gatherings, clubs, or raves. While she named the individual who provided the drugs, she also made it clear that the drug use was with a larger circle of friends. She stated that she used the drugs out of social pressure, but stopped because she realized that she was risking her job and her clearance. She acknowledged using these drugs at two different employers, while cleared (SOR 1.e.), and knew that there was a no-tolerance drug policy at one of them. Applicant also disclosed that she was arrested in June 2010 and charged with marijuana possession (SOR 1.d.), but was tried and acquitted in January 2011 (AE F). However, Applicant was also interviewed by a Government investigator in February 2009, as part of an earlier background investigation (GE 2). She described using ecstasy once in April 2004, using cocaine twiceConce in April 2007 and once in May 2008, using psychedelic mushrooms once in July 2007, and using cannabis about 88 times between June 2004 and June 2008. She used cannabis with her siblings and others. She stated that she bought cannabis about one-third of the times she used, and sometimes gave away or sold the drug to friends. She stated that she would not use cannabis again because of the risks to her job and clearance. Applicant executed a statement of intent regarding future drug use as contemplated by the Directive (Answer, AE F). She underwent a drug screen in March 2019 that tested negative for six categories of illegal drugs (AE F). Applicant acknowledged that her poor decisions reflect adversely on her judgment, but attributes them to her youth, some traumatic life experiences, and peer pressure.

However, she notes that she no longer associates with the friend who previously supplied the drugs when they got together, and she has sharply reduced the number of times per year that she returns home for family events. And she absents herself from the gathering if any of her siblings produce marijuana. Applicant's character referencesCa coworker and social acquaintance, her uncle, a long-time friend and former coworker, and an intermittent boyfriend (AE G)Cconsider her honest and trustworthy, and recommend her for her security clearance. None of them has seen any indication of illegal drug use, although they have seen the SOR allegations.

POLICIES

The AG list factors to evaluate a person's suitability for access to classified information. Administrative judges must assess disqualifying and mitigating conditions under each issue fairly raised by the facts and situation presented. Each decision must also show a fair, impartial, and commonsense consideration of the factors listed in AG ¶ 2(d). The applicability of a disqualifying or mitigating condition is not, by itself, conclusive. However, specific guidelines should be followed when a case can be measured against them, as they are policy guidance governing the grant or denial of a clearance. Considering the SOR allegations and the evidence as a whole, the relevant adjudicative guidelines are Guideline H (Drug Involvement), and Guideline J (Criminal Conduct). Security clearance decisions resolve whether it is clearly consistent with the national interest to grant or continue an applicant's security clearance. The Government must prove, by substantial evidence, controverted facts alleged in the SOR. If it does, the burden shifts to applicant to refute, extenuate, or mitigate the Government's case. Because no one has a right to a security clearance, an applicant bears a heavy burden of persuasion. Persons with access to classified information enter into a fiduciary relationship with the Government based on trust and confidence. Therefore, the Government has a compelling interest in ensuring each applicant possesses the required judgment, reliability, and trustworthiness of those who must protect national interests as their own. The Aclearly consistent with the national interest@ standard compels deciding any reasonable doubt about an Applicant's suitability for access in favor of the Government.4

ANALYSIS

The Government established a case for disqualification under Guideline H, by demonstrating Applicant's illegal drug abuse between April 2004 and March 2015, and her illegal drug use after being granted a clearance in April 2009.5 However, Applicant

mitigated the security concerns. Applicant used illegal drugs in social settings for about 11 years, including for about six years after she was granted a clearance. Nevertheless, she has not used any illegal drugs for four years. Drug involvement mitigating conditions give significant support to Applicant. Her illegal drug abuse was not recent, not frequent, and occurred under circumstances unlikely to recur.6 Applicant has distanced herself from friends and family with whom she used drugs. She has learned to walk away from family gatherings if illegal drugs are introduced. She has used no illegal drugs for four years. Finally, she has executed a statement of intent regarding future illegal drug use as contemplated by the guidelines.7 Under the circumstances, I conclude Applicant is unlikely to abuse illegal drugs in the future. Accordingly, I resolve Guideline H for Applicant. The Government established a case for disqualification under Guideline J, but Applicant mitigated the security concerns. Applicant was acquitted of the June 2010 drug possession charge, and the Applicant's social use of cocaine, ecstasy, and marijuana lack security significance even under a disqualifying condition which contemplates a pattern of minor misconduct. None of the drug use resulted in charges, and it is a stretch to consider the drug use a course of criminal conduct. Nevertheless, in this case, even considering the drug use to be a course of criminal conduct does not raise any security concerns beyond those already considered under Guideline H.8 Moreover, even if I concluded that the disqualifying conditions were fully applicable, the corresponding mitigating conditions remove any security concerns.9 Applicant was acquitted of the single possession charge, none of the drug use was ever charged, and she has an (f) any illegal drug use while granted access to classified information or holding a sensitive position; 6&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 [Emphasis supplied]; 7&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) 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; 8&31.(a) a pattern of minor offenses, any one of which on its own would be unlikely to affect a national security eligibility decision, but which in combination cast doubt on the individual's judgment, reliability, or trustworthiness.; . . . 9&32.(a) so much time has elapsed since the criminal behavior happened . . . that it is unlikely to recur and does not cast doubt on the individuals= reliability, trustworthiness, or good judgment; (d) there is evidence of successful rehabilitation; including, but not limited to, the passage of time without recurrence of criminal activity, restitution, compliance with the terms of parole or probation, job training or higher education, good employment record, or constructive community involvement.

_______________________

excellent employment record. Accordingly, I resolve Guideline J for Applicant.

FORMAL FINDINGS

Paragraph 1. Guideline H: For Applicant Subparagraphs a-e: For Applicant Paragraph 2. Guideline J: For Applicant Subparagraph a: For Applicant

CONCLUSION

Under the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance granted. JOHN GRATTAN METZ, JR Administrative Judge

FOOTNOTES

1 Consisting of the transcript (Tr.), Government exhibits (GE ) 1-2, hearing exhibits (HE I-II, and Applicant exhibits (AE) A-H. AE H was admitted for the sole purpose of identifying AE A-G for the record. AE I was not admitted, but is included in the case file per the requirements of the Directive.

2 DoD acted under Executive Order 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 Security Executive Agent Directive 4, effective on 8 June 2017.

3 Amphetamines, speed, crystal meth-amphetamines, ecstasy, etc.

4 See, Department of the Navy v. Egan, 484 U.S. 518 (1988). 5 &25(a) any substance misuse; (c) illegal possession of a controlled substance, including . . . purchase. . .;