ISCR Case No. 19-00540

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

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In the matter of: ) ) ------------------- ) ISCR Case No. 19-00540 ) ) Applicant for Security Clearance )

For Government: Adrienne Driskill, Esquire, Department Counsel

For Applicant: Pro se

September 25, 2019

ROSS, Wilford H., Administrative Judge: Statement of the Case Applicant submitted his most recent Electronic Questionnaire for Investigations Processing (e-QIP) on December 15, 2016. (Government Exhibit 1.) On March 18, 2019, the Department of Defense Consolidated Adjudications Facility (DoD CAF) issued a Statement of Reasons (SOR) to Applicant, detailing security concerns under Guideline H (Drug Involvement and Substance Misuse). 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 National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position, effective within the Department of Defense on June 8, 2017.

Applicant answered the SOR in writing (Answer) on April 6, 2019, and requested a hearing before an administrative judge. Department Counsel was prepared to proceed on May 16, 2019. The case was assigned to me on May 17, 2019. The Defense Office of Hearings and Appeals (DOHA) issued a Notice of Hearing on June 10, 2019. I convened the hearing as scheduled on July 29, 2019. The Government offered Government Exhibits 1 through 3, which were admitted without objection. Applicant testified on his own behalf, and submitted Applicant Exhibits A and B, which were also admitted without objection. DOHA received the transcript of the hearing (Tr.) on August 7, 2019.

Applicant is a 38-year-old employee of a defense contractor, where he works as a director supervising 55 people. He is single, and has a Bachelor’s degree. He has worked for his employer since 2006, and is seeking to retain national security eligibility for a security clearance in connection with his work with the DoD. (Government Exhibit 1 at Sections12 and 13A; Applicant Exhibits A and B; Tr. 39.)

Paragraph 1 (Guideline H – Drug Involvement and Substance Misuse)

The Government alleges in this paragraph that Applicant is ineligible for clearance because he has used illegal drugs. Applicant admitted allegations 1.a and 1.b under this paragraph. He denied allegation 1.c.

1.a. Applicant used marijuana from two to five times a year from approximately 2000, when he was in college, until approximately April 2018. He used marijuana after obtaining a security clearance in 2006. He stopped using marijuana after being interviewed about his drug use by an investigator from the Office of Personnel Management (OPM). Applicant stated that he used marijuana most recently in an attempt to relieve work-related stress. He also admitted that using marijuana over such a long period while being employed and holding a security clearance was a poor decision. Applicant stated that his marijuana use was not at work, and that his use had no impact on his work. Finally, Applicant admitted that he knew his use of marijuana was illegal under Federal law during the entirety of his use, and under state law during most of his use. (Government Exhibit 1 at Section 23, and Exhibit 2; Tr. 20-25, 28-30, 32.)

1.b. Applicant purchased marijuana from a dispensary after such purchase became legal in his state. He stated that he was confused about the legality of such purchase under Federal law at the time he made it. Applicant testified that he only purchased marijuana this one time. This single purchase has no security significance. (Tr. 30-31.)

1.c. Applicant denied that he intended to continue to use marijuana in the future. In his interview with an OPM investigator on April 30, 2018, Applicant stated that he intended to use marijuana in the future. In his signed and notarized Answer Applicant

stated, “I am retracting this previous response and formally declaring there will be no intended illegal use of a controlled substance (including marijuana) in the future.” (Answer; Government Exhibit 2; Tr. 31, 40-42.)

Applicant testified that nobody at his place of employment knew about his hearing. He further testified that he did not tell them because he would have been embarrassed. (Tr. 38-39.)

Applicant further testified that his employer has a drug-free workplace policy, including marijuana. He further testified that as a manager he has attended briefings about what to do if he suspects one of his subordinates is using drugs at the workplace. (Tr. 28, 39.)

When evaluating an applicant’s national security eligibility for a security clearance, 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, “Any 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, “The 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 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, “Any 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.)

Paragraph 1 (Guideline H – Drug Involvement and Substance Misuse)

The security concern relating to Drug Involvement and Substance Misuse is set forth 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.

I have examined the disqualifying conditions under AG ¶ 25 and especially considered the following:

(a) any substance misuse (see above definition);

(c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution, or possession of drug paraphernalia;

(f) any illegal drug use while granted access to classified information or holding a sensitive position; and

(g) expressed intent to continue drug involvement and substance misuse, or failure to clearly and convincingly commit to discontinue such misuse.

Applicant has a history of using illegal drugs. Applicant repeatedly used marijuana between 2000 and 2018. He used it while holding a security clearance from 2006 onwards. He only stopped using the drug after he was interviewed for a security clearance.

The following mitigating conditions under AG ¶ 26 have also been considered:

(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 had not used marijuana for over a year as of the date of the hearing. I am viewing his Answer as a signed statement of intent to abstain from drug involvement and substance misuse as defined in AG ¶ 26(b)(3). In determining whether sufficient time has passed to demonstrate that he will not return to marijuana use in the future one has to look at the whole person. Applicant argued that marijuana was not an important part of his life, yet he was a fairly consistent user of the drug for approximately 18 years. In addition, he felt it was an important part of his life that he was embarrassed about, and made the decision not to tell anyone at work about his hearing or the reason for it. It is also telling that he used marijuana during most of his employment while holding a security clearance, in violation of criminal law, and despite his company’s drug-free workplace policy. There is little to no evidence, other than his self-serving testimony, that he will not return to drug use in the future if granted national security eligibility. Applicant has not met his burden of persuasion to mitigate concerns arising from his lengthy history of drug involvement at this time. This allegation is found against Applicant.

Under the whole-person concept, the 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. 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.

Under AG ¶ 2(c), the ultimate determination of whether to grant national security 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 pertinent facts and circumstances surrounding this case. Applicant has not mitigated the security concerns resulting from his long-term drug involvement. His expressed embarrassment over telling his employer about his drug use shows that he continues to be susceptible to pressure, coercion, exploitation, or duress. Overall, the record evidence creates substantial doubt as to Applicant's present suitability for national security eligibility and a security clearance.

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

Subparagraph 1.a:

Against Applicant

Subparagraph 1.b:

For Applicant

Subparagraph 1.c:

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 or continue Applicant's national security eligibility for a security clearance. Eligibility for access to classified information is denied.

WILFORD H. ROSS Administrative Judge