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ISCR Case 18-01786 — CASE

ISCR Case 18-01786denied

Case Headnote

ISCR Case No. 18-01786

deniedFeb 11, 2019· Hon. Richard A. Cefola· hearing

Summary

A 26-year-old defense contractor employee was denied a security clearance due to concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The Statement of Reasons cited a pattern of rule violations, specifically marijuana use from approximately January 2013 to February 2017, occurring "zero to three, four times a year." Additionally, the applicant continued to associate with at least one marijuana user.

A key concern arose from the applicant's November 2016 SF-86, where, despite being aware of his employer's drug policy, he indicated he "might" use marijuana in the future. This raised disqualifying conditions related to personal conduct and drug involvement.

While mitigating conditions were considered, the judge ultimately found the applicant's stated intention to abstain from future drug use to be questionable, particularly given prior admissions of potential future use and continued association with marijuana users. Consequently, the security clearance was denied.

Why the Applicant Was Denied

The applicant admitted to limited marijuana use and still associates with friends who use marijuana.
The applicant's statement of future intentions to abstain from drug use was deemed questionable due to prior admissions of potential future use.

Conditions Referenced

Disqualifying

AG ¶ 25(a)raisedSubstance Misuse
AG ¶ 25(c)raisedIllegal Possession of a Controlled Substance
AG ¶ 16(c)raisedCredible Adverse Information
AG ¶ 16(d)raisedCredible Adverse Information Not Covered by Other Guidelines
AG ¶ 16(g)raisedAssociation with Persons Involved in Criminal Activity

Mitigating

AG ¶ 26(a)rejectedBehavior Unlikely to RecurThe applicant's marijuana use was recent and he still associates with users.
AG ¶ 26(b)rejectedAcknowledgment of Drug InvolvementThe applicant's commitment to abstain was questioned due to prior admissions.

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 issuedJul 3, 2018
Answer filedAug 15, 2018
Hearing heldOct 3, 2018
Decision dateFeb 11, 2019

Cite For

Denial of Security Clearance Due to Drug Involvement Under Guideline H
Questionable Commitment to Abstain From Drug Use
Association with Drug Users Impacting Security Clearance Eligibility

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 E (Personal Conduct) · descriptive summary of a decided case

Posture: HearingDecided: denied

The judge found that the applicant has a pattern of rule violations due to his marijuana usage and ongoing association with marijuana users. The allegations were ruled against the applicant, leading to a denied security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant has a pattern of rule violations as evidenced by his marijuana usage. Furthermore, he still associates with at least one marijuana user.	Against Applicant	Pattern of Dishonesty or Rule Violations	—	Denied	—	—	—

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

Standardized Decision Profile

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

Posture: HearingDecided: denied

The judge found that the applicant used marijuana four times a year from 2013 to 2017 and expressed a potential intent to use it again in the future, despite being aware of his employer's drug policy. The decision was ultimately denied due to concerns about the applicant's commitment to abstaining from drug use.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant used marijuana "zero to three, four times a year," from about January of 2013 until about February of 2017.	Against Applicant	Marijuana	Occasional	Admitted	—	—	—
1.b	When Applicant was hired, he was aware of his employers "drug policy." However, in his answer to Section 23 of his November 2016 SF-86, Applicant averred that he "might" use marijuana in the future.	Against Applicant	Stated Intent to Use Again	Not Applicable	Denied	—	—	—

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. 18-01786

)

) Applicant for Security Clearance )

For Government: Aubrey De Angelis, Esq., Department Counsel For Applicant: Pro se

February 11, 2019 ______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

Statement of the Case

On November 9, 2017, Applicant submitted a security clearance application (SF- 86). On July 3, 2018, the Department of Defense issued Applicant a Statement of Reasons (SOR) alleging facts that raise security concerns under Guidelines 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 August 15, 2018, and requested a hearing before an administrative judge. The case was assigned to me on September 12, 2018. The Defense Office of Hearings and Appeals (DOHA) issued a Notice of Hearing on September 13, 2018. I convened the hearing as scheduled on October 3, 2018. The Government offered Government Exhibits 1 and 2, which were admitted without objection. Applicant testified on his own behalf, DOHA received the

transcript of the hearing (TR) on October 11, 2018. The record was left open for the receipt of additional evidence. On November 5, 2018, Applicant submitted a closing statement. The record closed at that time.

FINDINGS OF FACT

Applicant admitted to the allegation in SOR ¶ 1.a. He denied SOR allegation ¶ 1.b. He both admitted, in part, and denied, in part, SOR allegation ¶ 2.a. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact.

Applicant is a 26-year-old employee of a defense contractor. (TR at page 14 lines 6–24, and GX 1 at page 7.) He has been employed with the defense contractor since October of 2016.

Guideline H - Drug Involvement and Substance Misuse & Guideline E - Personal Conduct

1.a. and 2.a. Applicant used marijuana “zero to three, four times a year,” from about January of 2013 until about February of 2017, about two years ago. (TR at page 15 line 16 to page 16 line 21, and at page 18 line 11 to page 20 line 13.) He still associates with friends who use marijuana. (Id.)

1.b. and 2.a. When Applicant was hired, he was aware of his employers “drug policy.” (TR at page 14 line 25 to page 15 line 15.) However, in his answer to Section 23 of his November 2016 SF-86, Applicant averred that he “might” use marijuana in the future. (Id, and GX 1 at pages 27–28.) More recently, in his Answer, Applicant penned a “Statement of Abstinence” as to future “drug involvement.” (Answer at page 2.)

POLICIES

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.)

ANALYSIS

Guideline H - Drug Involvement and Substance Misuse

The security concern relating to the guideline 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 marijuana over a period of about four years. 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.

Applicant’s marijuana use was fairly recent. Although he has recently signed a statement of intent to abstain from future use; he averred that he “might” use it again in his November 2017 SF-86, and he still associates with at least one friend who uses marijuana. I find that his commitment is questionable. Guideline H 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. Three are potentially applicable in this case:

(c) credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole- person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the individual may not properly safeguard classified or sensitive information;

(d) credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse determination, but which, when combined with all available information, supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the individual may not properly safeguard classified or sensitive information. This includes, but is not limited to, consideration of:

(1) untrustworthy or unreliable behavior to include breach of client confidentiality, release of proprietary information, unauthorized release of sensitive corporate or government protected information;

(2) any disruptive, violent, or other inappropriate behavior;

(3) a pattern of dishonesty or rule violations; and

(4) evidence of significant misuse of Government or other employer's time or resources; and

(g) association with persons involved in criminal activity.

Applicant has a pattern of rule violations as evidenced by his marijuana usage. Furthermore, he still associates with at least one marijuana user. 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:

(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; and

(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.

Neither of these mitigating conditions apply. His last usage was two years ago, and a current friend is a user of the illegal substance. Guideline E is found against Applicant.

WHOLE PERSON CONCEPT

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 Guidelines H and E in my whole-person analysis. 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 Drug Involvement and Substance Misuse, Personal Conduct security concerns.

FORMAL FINDINGS

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 H:

AGAINST APPLICANT

Subparagraph 1.a:

Against Applicant Subparagraph 1.b:

Against Applicant

Paragraph 2, Guideline E:

AGAINST APPLICANT

Subparagraph 2.a:

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 eligibility for a security clearance. Eligibility for access to classified information is denied.

________________________ Richard A. Cefola Administrative Judge