ISCR Case No. 19-02219

______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: )

)

)

ISCR Case No. 19-02219

)

) Applicant for Security Clearance )

Appearances For Government: Jeff Nagel, Esq., Department Counsel For Applicant: Pro se February 24, 2021

CEFOLA, Richard A., Administrative Judge: Statement of the Case On October 5, 2017, Applicant submitted a security clearance application (SCA). On December 12, 2019, in accordance with DoD Directive 5220.6, as amended (Directive), the Department of Defense issued Applicant a Statement of Reasons (SOR) alleging facts that raise security concerns under Guidelines G, H, and E. The action was taken under Executive Order (EO) 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 (AG) effective within the Department of Defense on June 8, 2017. Applicant answered the SOR in writing (Answer) on January 17, 2020, and requested a hearing before an administrative judge. The case was assigned to me on September 3, 2020. The Defense Office of Hearings and Appeals (DOHA) issued a Notice of Hearing on October 6, 2020. I convened the hearing as scheduled on December 16, 2020. The Government offered Government Exhibits (GXs) 1 through 5,

which were admitted without objection. Applicant testified on his own behalf. DOHA received the transcript of the hearing (TR) on January 4, 2021. The record was left open for the receipt of additional evidence. On January 12, 2021, Applicant submitted a closing argument. The record closed at that time.

Applicant admitted all the allegations in the SOR. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact. Applicant is a 54-year-old employee of a defense contractor. He has been employed with a defense contractor since 1989. He has held a security clearance since 1989. (TR at page 15 line 22 to page 17 line 18, and GX 2 at page 7.) He is married, and has two adult children. (TR at page 15 line 22 to page 17 line 18, and GX 2 at pages 15, 17 and 18.) Guideline G: Alcohol Consumption

Applicant began drinking alcohol at about 15 years of age, and started having “drinking problems” at the age of 18. (TR at page 17 line 20 to page 18 line 13.) His first Driving Under the Influence of Alcohol (DUI) incident occurred about 1988. This incident was not alleged in the SOR. Applicant considers himself to be an alcoholic. (TR at page 17 line 20 to page 19 line 14.) 1.d. Applicant’s second alcohol-related incident occurred in February of 2008, when he was charged with and pled guilty to DUI. (TR at page 19 line 15 to page 25 line 13.) He received treatment, was diagnosed as suffering from an Alcohol Use Disorder, and attended Alcoholics Anonymous for two years. (Id., and TR at page 27 lines 3–8.) 1.a. After about eight years of sobriety, Applicant returned to the consumption of alcohol; and as a result, received out-patient treatment for his Alcohol Use Disorder from about February 2017 to about August 2017. (TR at page 25 line 20 to page 28 line 7, and at page 30 lines 2–8.) 1.b. After a “few months” of sobriety, Applicant again returned to the consumption of alcohol; and as a result, received in-patient treatment for Alcohol Use Disorder, Severe from about January of 2018 to about May 2018. (TR at page 28 line 10 to page 32 line 7.) 1.c. Despite the above mentioned in-patient and out-patient treatments, Applicant returned to the consumption of alcohol. (TR at page 32 line 8 to page 35 line 5.) He avers that he has abstained from its consumption since October of 2018, about two years prior to his hearing. (Id.)

Guideline H: Drug Involvement and Substance Misuse 2.a. and 2.b. Applicant used marijuana on numerous occasions from 1981 until about January of 2018. (TR at page 35 line 10 to page 36 line 14.) Most of his usage was prior to his being granted a security clearance, but Applicant did use the illegal substance “a couple of times” while holding a security clearance. (TR at page 17 lines 9–14, at page 37 line 8 to page 38 line 18, and at page 42 lines 6–25.) Guideline E, Personal Conduct 3.a. and 3.b. In answer to Section 23 on his October 5, 2017, SCA, Applicant failed to disclose his marijuana usage. During his subsequent subject interview conducted under oath on January 17, 2019, Applicant continued to conceal his marijuana usage. (TR at page 38 line 19 to page 39 line 11, and GX 2 at pages 29–30.) This lack of candor constitutes willful falsifications.

When evaluating an applicant’s suitability for national security eligibility, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines (AG) list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s national security eligibility. 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 AG ¶ 2 describing the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. The entire process is a conscientious scrutiny of applicable guidelines in the context 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. I have not drawn inferences based on mere speculation or conjecture. Directive ¶ E3.1.14, requires the Government to 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 applying for national security eligibility seeks to enter 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 national security eligibility. 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 or sensitive information. Finally, as emphasized in Section 7 of Executive Order 10865, “[a]ny determination under this order adverse to an applicant shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also Executive Order 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

Guideline G: Alcohol Consumption The security concern relating to the guideline for Alcohol Consumption is set out in AG ¶ 21: Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual's reliability and trustworthiness. The guideline at AG ¶ 22 contains seven conditions that could raise a security concern and may be disqualifying. Three conditions may apply: (a) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of the frequency of the individual's alcohol use or whether the individual has been diagnosed with alcohol use disorder; (d) diagnosis by a duly qualified medical or mental health professional (e.g., physician, clinical psychologist, psychiatrist, or licensed clinical social worker) of alcohol use disorder; and (e) the failure to follow treatment advice once diagnosed. Applicant has two DUIs (although one is not alleged), and has been diagnosed on three occasions as suffering from an Alcohol Use Disorder. These facts establish prima facie support for the foregoing disqualifying conditions, and shift the burden to Applicant to mitigate those concerns. The guideline at AG ¶ 23 contains four conditions that could mitigate security concerns. Three conditions may apply:

(a) so much time has passed, or the behavior was so infrequent, or it happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual's current reliability, trustworthiness, or judgment; (b) the individual acknowledges his or her pattern of maladaptive alcohol use, provides evidence of actions taken to overcome this problem, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations; and (d) the individual has successfully completed a treatment program along with any required aftercare, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations. Applicant is a recovering alcoholic, who has returned to consuming the intoxicant on at least three occasions after in-patient and out-patient treatments. Although he should be commended for his current two years of sobriety, it is too soon to conclude, in light of his past history, that Applicant will not relapse. Alcohol Consumption is found against Applicant. 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 (f) any illegal drug use while granted access to classified information or holding a sensitive position.

Appellant used marijuana on numerous occasions, to include after having been granted a security clearance. Therefore, AG ¶ 25 (a) and (f) 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’s marijuana usage is fairly recent, in January of 2018. It also occurred while he held a security clearance. He has submitted no signed statement eschewing future usage. Drug Involvement is found against Applicant. Guideline E: Personal Conduct The security concern relating to the guideline for Personal Conduct is set out in AG ¶ 15: Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual's reliability, trustworthiness, and ability to protect classified or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes. The guideline notes several conditions that could raise security concerns under AG ¶ 16. Two are potentially applicable in this case:

(a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine national security eligibility or trustworthiness, or award fiduciary responsibilities; and (b) deliberately providing false or misleading information; or concealing or omitting information, concerning relevant facts to an employer, investigator, security official, competent medical or mental health professional involved in making a recommendation relevant to a national security eligibility determination, or other official government representative. Applicant falsified his 2019 SCA, and continued his ruse in a subsequent subject interview. The evidence is sufficient to raise these disqualifying conditions. AG ¶ 17 provides conditions that could mitigate security concerns. I considered all of the mitigating conditions under AG ¶ 17 including: (a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts; This does not apply. Applicant compounded his initial falsification with his subject interview. Personal Conduct is found against Applicant.

Under the whole-person concept, the administrative judge must evaluate an applicant’s national security eligibility 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. According to AG ¶ 2(c), the ultimate determination of whether to grant national security eligibility must be an overall commonsense judgment based upon careful consideration of the applicable guidelines and the whole-person concept. I considered the potentially disqualifying and mitigating conditions in light of all facts and circumstances surrounding this case. I have incorporated my comments under

________________________ Guideline G, H, and E in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines, but some warrant additional comment. 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 failed to mitigate the Alcohol Consumption, Drug Involvement, and Personal Conduct security concerns.

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of the Directive, are: Paragraph 1, Guideline G: AGAINST APPLICANT Subparagraphs 1.a. through 1.d.: Against Applicant Paragraph 2, Guideline H: AGAINST APPLICANT Subparagraph 2.a. and 2.b.: Against Applicant Paragraph 3, Guideline E: AGAINST APPLICANT Subparagraph 3.a. and 3.b.: Against Applicant

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 eligibility for a security clearance. Eligibility for access to classified information is denied. Richard A. Cefola Administrative Judge