CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 20-01255 — CASE

ISCR Case 20-01255denied

Case Headnote

ISCR Case No. 20-01255

deniedOct 5, 2021· Hon. Richard A. Cefola· hearing

Summary

A 42-year-old defense contractor was denied a security clearance under Guideline H (Drug Involvement) due to his admitted use and purchase of marijuana from January 2016 until August 2020. The applicant acknowledged that this activity violated both federal law and his employer's policy.

The administrative judge identified significant security concerns, citing the applicant's prolonged drug use, which ceased only a year before the hearing. This conduct, being illegal and contrary to company policy, raised doubts about his reliability and trustworthiness.

While the applicant expressed an intent to abstain from marijuana, this was deemed insufficient to mitigate the established security risks. Consequently, the applicant was denied eligibility for access to classified information.

Why the Applicant Was Denied

The applicant admitted to using and purchasing marijuana for over four years, ending only a year prior to the hearing.
The applicant's drug use was illegal and against his employer's policy, raising questions about his reliability and trustworthiness.
The applicant's statement of intent to abstain from marijuana was deemed insufficient to mitigate the security concerns.

Conditions Referenced

Disqualifying

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

Mitigating

AG ¶ 26(a)rejectedBehavior Unlikely to RecurThe applicant's drug use ended only a year prior, making it too soon to determine that it would not recur.
AG ¶ 26(b)rejectedAcknowledgment and Evidence of Actions Taken to Overcome Drug InvolvementThe applicant's intent to abstain was insufficient to mitigate the concerns.

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 issuedOct 15, 2020
Answer filedMar 31, 2021
Hearing heldAug 6, 2021
Decision dateOct 5, 2021

Cite For

Security Concerns Related to Drug Involvement Under Guideline H
Insufficient Mitigation of Drug Use Despite Intent to Abstain
Importance of Compliance with Laws and Employer Policies in Security Clearance Evaluations

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 applicant admitted to using and purchasing marijuana from January 2016 until August 2020, despite knowing it was against his employer's policy and federal law. The judge found the allegations against the applicant, concluding that granting him national security eligibility was not consistent with the national interest.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant admits that he used and purchased marijuana with varying frequency from about January 2016 until his last usage in August of 2020.	Against Applicant	Marijuana	Frequent	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.b	Applicant continued to use and purchase marijuana despite knowing it was against his employer’s policy, and was also against Federal Law.	Against Applicant	Marijuana	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. 20-01255 ) ) Applicant for Security Clearance ) Appearances For Government: Jeff Nagel, Esquire, Department Counsel For Applicant: Pro se October 5, 2021

STATEMENT OF CASE

CEFOLA, Richard A., Administrative Judge: On November 21, 2018, Applicant submitted his Electronic Questionnaire for Investigations Processing (e-QIP). On October 15, 2020, 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 March 31, 2021, and requested a hearing before an administrative judge. Defense Office of Hearings and Appeals (DOHA) received the request soon thereafter. I received the case assignment on June 21, 2021. DOHA issued a Notice of Hearing on June 25, 2021, and I convened the hearing as scheduled on August 6, 2021. The Government offered Exhibits (GXs) 1 and 2, which were received without objection. Applicant testified and offered Exhibit (AppX) A, which was without objection. He also asked that the record be kept open until

September 7, 2021, for the receipt of additional documentation. On September 7, 2021, Applicant also offered AppX B, which was received without objection. DOHA received the transcript of the hearing (TR) on August 18, 2021. 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, in part, and denied, in part, 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 42 years old, married, and has two children. He has a degree in Business Administration. He works for a defense contractor. (GX 1 at page 7, and TR at page 14 line 7 to page 16 line 3.) Guideline H – Drug Involvement 1.a. and 1.b. Applicant admits that he used and purchased marijuana with varying frequency from about January 2016 until his last usage in August of 2020. He used marijuana to treat migraine headaches. (TR at page 18 line 11 to page 21 line 12.) Applicant continued to use and purchase marijuana despite knowing it was against his employer’s policy, and was also against Federal Law. (TR at page 22 lines 6–10, and at page 25 line 13 to page 26 line 22.) He most recently submitted a September 3, 2021, letter of intent to abstain from marijuana usage. (AppX B.)

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 and purchased marijuana for a period of more than four years, ending about a year prior to his hearing. 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. Although Applicant has now provided a statement of intent to abstain from the use of marijuana in the future, his knowing, illegal usage only ended about a year ago. It is too soon to say that usage is not of security concern. Drug Involvement 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 failed to mitigate 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 Subparagraphs 1.a. and 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