ISCR Case No. 20-02234

______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) [Redacted] ) ISCR Case No. 20-02234 ) Applicant for Security Clearance ) Appearances For Government: Raashid S. Williams, Esq., Department Counsel For Applicant: Pro se 11/22/2021

FOREMAN, LeRoy F., Administrative Judge: This case involves security concerns raised under Guideline H (Drug Involvement and Substance Misuse) and E (Personal Conduct). Eligibility for access to classified information is denied. Statement of the Case Applicant submitted a security clearance application (SCA) on January 20, 2021. On April 25, 2021, the Defense Counterintelligence and Security Agency Consolidated Adjudications Facility (CAF) sent him a Statement of Reasons (SOR) alleging security concerns under Guidelines H and E. The CAF acted under Executive Order (Exec. Or.) 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) promulgated in Security Executive Agent Directive 4, National Security Adjudicative Guidelines (December 10, 2016). Applicant answered the SOR on May 28, 2021, and requested a decision on the written record without a hearing. Department Counsel submitted the Government’s written

case on July 22, 2021. On July 30, 2021, 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 August 4, 2021, and did not respond. The case was assigned to me on October 6, 2021. The FORM consists of five items. FORM Items 1 and 2 are the SOR and Appellant’s answer. FORM Items 3-5 are evidentiary documents, and they have been admitted in evidence without objection.

In Applicant’s answer to the SOR, he admitted the allegations. His admissions in are incorporated in my findings of fact. Applicant is a 31-year-old employee of a federal contractor. He graduated from high school in June 2008 and attended a community college from September 2008 to January 2010, but he did not receive a degree. He worked in various non-federal jobs until he was hired by his current employer in April 2019. He has never married and has no children. He has never held a security clearance. In his SCA, Applicant disclosed that in April 2011, he was charged with misdemeanor possession of marijuana. He was convicted but the charge was reduced to possession of paraphernalia on appeal. He was sentenced to 90 days in jail (suspended), a $200 fine, and 12 months of supervised probation. (FORM Item 3 at 33-35.) Applicant also disclosed in his SCA that he used marijuana between May 2017 and January 2020. He stated that he used it once in May 2017, once in August 2017, and twice in a state where it is legal in 2018 and 2020. He stated that his recreational use of marijuana “became less of a want for me to do” as he “furthered in [his] career.” (FORM Item 3 at 35) In his December 2010 response to DOHA interrogatories, he stated that he had not used marijuana since January 2020. (FORM Item 4 at 9.) During an interview with a security investigator on March 12, 2020, he told the investigator that he purchased marijuana edibles from a dispensary in a state where marijuana is legal in 2018 and in January 2020. He told the investigator that he continues to socialize with two friends who continue to use marijuana. He has not received any treatment or rehabilitation for drug use. He told the investigator that he will never use drugs again. (Form Item 4 at 11-12.) In Applicant’s response to interrogatories, he disclosed that he was cited on February 29, 2020 for driving under the influence of alcohol or drugs and failure to signal a turn. Adjudication was deferred, and he successfully completed a diversion program, after which the charges were dismissed and the record sealed. Although he was charged under a statute that encompassed driving under the influence of drugs, there is no

evidence that drugs were involved in this incident. (FORM Item 4 at 4-7.) He was on temporary duty on a U.S. Air Force base when the incident occurred.

“[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.

Guideline H, Drug Involvement and Substance Misuse The SOR alleges that Applicant was arrested in April 2011 and charged with possession of marijuana (SOR 1.a), that he used marijuana with varying frequency from about April 2011 to about January 2020 (SOR ¶ 1.b), and that he purchased marijuana from about 2018 to about January 2020 (SOR ¶ 1.c). 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 evidence in the FORM establish the following disqualifying conditions under this guideline: AG ¶ 25(a): any substance misuse (see above definition); and AG ¶ 25(c): illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia. 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; 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, not infrequent, and did not occur under unusual circumstances. AG ¶ 26(b) is not established. Applicant has acknowledged his drug use, but he has not sought or received treatment. His last marijuana use was recent. He continues to associate with drug users, and he has not provided a statement of intent to abstain from all drug involvement. Guideline E, Personal Conduct The SOR cross-alleges the information in SOR ¶¶ 1.a-1.c as personal conduct under this guideline. The security concern under this guideline 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. . . .” The following disqualifying conditions are potentially applicable: AG ¶ 16(e): personal conduct, or concealment of information about one's conduct, that creates a vulnerability to exploitation, manipulation, or duress by a foreign intelligence entity or other individual or group. Such conduct includes . . . engaging in activities which, if known, could affect the person's personal, professional, or community standing; and AG ¶ 16(g): association with persons involved in criminal activity.

Both disqualifying conditions are established. Applicant’s use of marijuana made him vulnerable to exploitation, manipulation, or duress and could affect his

professional standing among federal contractors and employees. He admitted to a security investigator that he continues to associate with friends who engage in illegal drug use. The following mitigating conditions are potentially applicable: AG ¶ 17(c): the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment; AG ¶ 17(d): the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that contributed to untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur; AG ¶ 17(e): the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress; and AG ¶ 17(g): association with persons involved in criminal activities was unwitting, has ceased, or occurs under circumstances that do not cast doubt upon the individual's reliability, trustworthiness, judgment, or willingness to comply with rules and regulations. AG ¶ 17(c) is not established. Illegal drug use by a federal contractor is not “minor.” Applicant’s drug use was not infrequent and did not occur under unique circumstances. AG ¶¶ 17(d) and 17(e) are not established. Applicant has acknowledged his behavior but has not taken any positive steps to avoid recurrence or reduce his vulnerability to exploitation, manipulation, or duress. AG ¶ 17(g) is not established. Applicant continues to associate with his drug-using friends.

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. An 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. I have incorporated my comments under Guideline H and E 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). After weighing the disqualifying and mitigating conditions under Guideline H and E, 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 and personal conduct.

I make the following formal findings on the allegations in the SOR: Paragraph 1, Guideline H: AGAINST A PPLICANT Subparagraphs 1.a-1.c: Against Applicant Paragraph 2, Guideline E: AGAINST APPLICANT Subparagraph 2.a: Against Applicant

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