ISCR Case No. 20-03358

~·~~li :ri. la:l <fl ______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS \-lE In the matter of: ) ) ) ISCR Case No: 20-03358 ) Applicant for Security Clearance ) Appearances For Government: Raashid S. Williams, Esquire, Department Counsel For Applicant: Pro se 08/16/2022

Dam, Shari, Administrative Judge: Applicant failed to mitigate the security concerns raised under the Drug Involvement and Substance Misuse guideline. Based upon a review of the pleadings and exhibits, national security eligibility is denied. Statement of Case On February 4, 2021, the Department of Defense Counterintelligence and Security Agency Consolidated Adjudications Facility (DoD CAF) issued Applicant a Statement of Reasons (SOR), detailing security concerns under Guideline H (Drug Involvement and Substance Misuse). On February 11, 2021, Applicant responded to the SOR and requested his case be decided by an administrative judge on the written record without a hearing. On June 14, 2022, Department Counsel submitted the Government’s written case. A complete copy of the File of Relevant Material (FORM), containing four Items, was mailed to Applicant on April 7, 2022, and he received it on April 19, 2022. The FORM notified Applicant that he had an opportunity to file objections and submit material in refutation, extenuation, or mitigation within 30 days of receipt of the FORM. Applicant did not respond to the FORM or object to Items 1 through 4. Hence, all Items are admitted

into evidence. On August 4, 2022, the Defense Office of Hearings and Appeals (DOHA) assigned the case to me.

Applicant admitted the sole SOR allegation contained in Paragraph 1.a. (Item 2) His admission is incorporated into these findings of fact. Applicant is 57 years old, married, and has two children. He earned a bachelor’s degree in 2016. He has worked for his employer since June 2014. In April 2017, he submitted a security clearance application (SCA) and was then granted a clearance. (Item 3) In March 2019, Applicant failed a urinalysis test and tested positive for cocaine. His security clearance was subsequently revoked. During an interview in April 2020, he told a government investigator that he had been at a party the night before the test and consumed a large amount of alcohol. He did not recall using cocaine that night. He said he has not had any other problems at his work. (Item 4)

The national security eligibility action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DoD 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 (AG), which became effective within the DoD on June 8, 2017. When evaluating an applicant’s suitability for national security eligibility, the administrative judge must consider the AG. In addition to brief introductory explanations for each guideline, the AG list potentially disqualifying conditions and mitigating conditions, which are to be used 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, 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 H: Drug Involvement and Substance Misuse AG ¶ 24 describes the security concerns related to this guideline: 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. AG ¶ 25 sets out conditions that could raise security concerns and may be disqualifying in this case. Three are potentially applicable:

(a) any substance misuse (see above definition); (b) testing positive for an illegal drug; and (f) any illegal drug use while granted access to classified information or holding a sensitive position.

In March 2019, Applicant tested positive for cocaine, an illegal substance under Federal law. He held a security clearance when he tested positive. The evidence raised the above disqualifying conditions, thereby shifting the burden to Applicant to rebut, extenuate, or mitigate those concerns. AG ¶ 26 lists three conditions that could mitigate security concerns raised under this guideline: (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; (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; and (d) satisfactory completion of a prescribed drug treatment program, including, but not limited to, rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional. There is insufficient record evidence to establish any of the listed mitigating conditions. Applicant admitted that he tested positive for cocaine in March 2019, but does not recall ingesting it. He admitted that he had consumed a large amount of alcohol the evening before the test, which raises questions about his judgment, trustworthiness and reliability. Although the positive test occurred over three years ago and there are no other incidents involving the use of illegal substances since then, Applicant did not submit

evidence to demonstrate that similar problems will not recur and that he does not have a drug problem. AG ¶¶ 26(a), 26(b) and 26(c), do not apply.

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. According to 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 applicable 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 tested positive for cocaine a day after he had consumed a large amount of alcohol. He held a security clearance at the time. Those three facts leave me with significant doubts as to Applicant’s suitability and eligibility for a security clearance. Overall, Applicant failed to meet his burden to mitigate the security concerns arising under the guideline for drug involvement and substance misuse.

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

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 access to classified information. National security eligibility is denied. SHARI DAM Administrative Judge