ISCR Case No. 21-01682

______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 21-01682 ) Applicant for Security Clearance ) Appearances For Government: Patricia Lynch-Epps, Esq., Department Counsel For Applicant: Pro se 02/22/2022

DORSEY, Benjamin R., Administrative Judge: Applicant mitigated the drug involvement and substance misuse security concerns. Eligibility for access to classified information is granted. Statement of the Case On August 10, 2021, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline H, drug involvement and substance misuse. Applicant responded on September 15, 2021, and requested a decision based on the written record in lieu of a hearing. The Government’s written case was submitted on October 21, 2021. A complete copy of the file of relevant material (FORM) was provided to Applicant, who was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the security concerns. Applicant received the FORM on October 29, 2021. As of December 14, 2021, he had not responded. The case was assigned to me on February 9, 2022. The Government exhibits included in the FORM are admitted in evidence.

Applicant is a 24-year-old employee of a defense contractor. He has worked for his current employer since February 2021. He is applying for a security clearance for the first time. He earned a bachelor’s degree in December 2020. He has never married, but he has resided with a cohabitant since July 2017. He has no children. (Items 3, 4) From October 2016 until July 2020, Applicant used marijuana for recreational purposes. During this time period, he used marijuana about once every one to three months at most, while there were six or seven month gaps when he did not use marijuana at all. (Items 2, 3, 4) From May 2018 until about August 2019, Applicant used LSD in order to experience its effects with the possibility of improving his “mental state and general motivation.” During this period of time, he used LSD approximately once every five to six weeks. (Items 2, 3, 4) Applicant reported his marijuana and LSD use on the Questionnaire for National Security Positions (SF 86) he submitted in February 2021. He discussed his marijuana and LSD use when he was interviewed for his background investigation in March 2021. He stated that he will not use marijuana in the future unless it becomes legal under federal law. He stated that he will not use LSD again as he has “no reason nor desire to return to it.” Applicant stated that he is willing to undergo drug testing in order to prove that he is not using illegal drugs. He provided no evidence of a completed drug test. Applicant acknowledged that he probably still associates with people who use illegal drugs, but they do not discuss drug use, so he cannot be sure. (Items 3, 4) In his September 2021 response to the SOR, Applicant admitted both SOR allegations, reiterated his infrequent use of marijuana and LSD, and attempted to avail himself of what he calls the “rapidly changing positive shift” in the perception of marijuana. (Item 2)

This case is adjudicated under Executive Order (EO) 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 adjudicative guidelines (AG), which became effective on June 8, 2017. When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines 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, administrative judges apply the guidelines in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), 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.” Under Directive ¶ E3.1.14, the Government must 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.” The applicant has the ultimate burden of persuasion to obtain a favorable security 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 safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information. Section 7 of EO 10865 provides that adverse 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).

Guideline H, Drug Involvement and Substance Misuse The security concern for drug involvement and substance misuse 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. The guideline notes several conditions that could raise security concerns under AG ¶ 25. The following are potentially applicable in this case: (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.

Applicant possessed and used marijuana and LSD. Marijuana and LSD are controlled substances and illegal under federal law. The above disqualifying conditions are applicable. AG ¶ 26 provides conditions that could mitigate security concerns. The following are potentially 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; (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 illegal drug use and possession occurred while he was in college, before he began working for his current employer or applied for a security clearance. He last used an illegal drug in July 2020 a period of abstinence of about 19 months. Applicant was forthright, open, and honest about his past illegal drug use, volunteering it in his SF 86 and during his subject interview. In his SF 86, Applicant certified that he no longer intends to use illegal drugs. The veracity of this statement is bolstered by his openness during the investigative process about his past, illegal drug use. His conduct

no longer casts doubt on his reliability, trustworthiness, and good judgment. I find that Applicant has abstained from illegal drug use for an appropriate period, and that illegal drug use is unlikely to recur. AG ¶ 26(a) is established. Applicant acknowledged in his subject interview that he probably still associates with individuals who use illegal drugs. AG ¶¶ 26(b)(1) and 26(b)(2) are not established. While he certifies in his SF 86 that he will no longer use illegal drugs, Applicant does not provide a signed statement acknowledging that any future involvement or misuse is grounds for revocation of national security eligibility. AG ¶ 26(b)(3) is not established.

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 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. I have incorporated my comments under Guideline H in my whole-person analysis. Overall, the record evidence leaves me without questions or doubts about Applicant’s eligibility and suitability for a security clearance. I conclude Applicant mitigated the drug involvement and substance misuse security concerns.

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline H: FOR APPLICANT Subparagraphs 1.a-1.b: For Applicant

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It is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted. Benjamin Dorsey Administrative Judge